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July 23, 2014

Should federal prosecutors be able to read emails sent by prisoners to their lawyers?

The question in the title of this post is prompted by this new front-page New York Times story, headlined "Prosecutors Are Reading Emails From Inmates to Lawyers."  Here is the context:

The extortion case against Thomas DiFiore, a reputed boss in the Bonanno crime family, encompassed thousands of pages of evidence, including surveillance photographs, cellphone and property records, and hundreds of hours of audio recordings.

But even as Mr. DiFiore sat in a jail cell, sending nearly daily emails to his lawyers on his case and his deteriorating health, federal prosecutors in Brooklyn sought to add another layer of evidence: those very emails. The prosecutors informed Mr. DiFiore last month that they would be reading the emails sent to his lawyers from jail, potentially using his own words against him.

Jailhouse conversations have been many a defendant’s downfall through incriminating words spoken to inmates or visitors, or in phone calls to friends or relatives. Inmates’ calls to or from lawyers, however, are generally exempt from such monitoring. But across the country, federal prosecutors have begun reading prisoners’ emails to lawyers — a practice wholly embraced in Brooklyn, where prosecutors have said they intend to read such emails in almost every case.

The issue has spurred court battles over whether inmates have a right to confidential email communications with their lawyers — a question on which federal judges have been divided....

Defense lawyers say the government is overstepping its authority and taking away a necessary tool for an adequate defense.  Some of them have refused to admit even the existence of sensitive emails — which, they say, perhaps predictably, are privileged.

All defendants using the federal prison email system, Trulincs, have to read and accept a notice that communications are monitored, prosecutors in Brooklyn pointed out. Prosecutors once had a “filter team” to set aside defendants’ emails to and from lawyers, but budget cuts no longer allow for that, they said.

While prosecutors say there are other ways for defense lawyers to communicate with clients, defense lawyers say those are absurdly inefficient.

July 23, 2014 at 09:49 AM | Permalink


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We need a new policy: One can only become a prosecutor if one has worked for at least 10 years as a criminal defense attorney. Maybe that will be the only way to get rid of our modern criminal justice inquisitorial system.

Posted by: PDB | Jul 23, 2014 10:28:54 AM

It is hard to conceive that Judges will let the prosecutors get away with this practice for very long. What ever happened to simple respect for the attorney-client privilege?

I was once subpoenaed to testify before a Federal Grand Jury about a client's communications with me. The prosecutors boldly asked me, "What did you client tell you about X and Y?" After asserting attorney-client privilege in response to 20 questions, I asked the AUSAs (in front of the Grand Jurors) why they were trying to make it look to the Grand Jurors like my client was hiding something? The AUSAs and I both knew that ethically, I could not answer any of their questions (even if I had wanted to), without a Court Order finding that the crime-fraud exception to the privilege concerning my client's communications to me applied (and the AUSAs never sought such an Order from the Court). It just seems that many modern Federal prosecutors lack appropriate respect for the attorney-client privilege.

Posted by: Jim Gormley | Jul 23, 2014 12:40:30 PM

How is this not a violation of ethical standards? I can't think of a single prosecutor that I know personally who would condone this.

Posted by: C.E. | Jul 23, 2014 10:55:00 PM

I agree with C.E. This sounds like an ethical violation. Perhaps someone should file a complaint with the relevant state bar authority. I don't see how it is ethical to monitor email between a lawyer and client that the client believes to be privileged. This seems like a "gotcha" way of circumventing a hallowed privilege.

Posted by: AnonymousOne | Jul 23, 2014 11:25:47 PM

Yes, the government disingenuously pretends that email is some sort of unique communication method that is exempt from any of the protections afforded snail mail & telephone calls - not only in terms of attorney client privilege.

Posted by: Fed-X-ed | Jul 27, 2014 6:21:28 PM

"... Federal prosecutors lack appropriate respect for the attorney-client privilege."

Or pretty much anything else, for that matter...with the possible exception of their hyper-ambitious careers.

Posted by: John K | Aug 25, 2014 11:49:33 AM

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