Austin attorney Keith Hampton was on the phone last year with a witness in Amarillo. Hampton's client was on death row. The witness's information could, literally, have been a matter of life and death.
Hampton ended the call when he discovered that some one was eavesdropping on the other end of the line.
The witness was a Texas Department of Criminal Justice inmate at the Clements Unit prison. Prison rules dictated that attorney-inmate phone calls would be monitored by staff. Hampton, citing the hig h stakes involved in his case, asked TDCJ general counsel Carl Reynolds for an exception to the monitoring rule.
Hampton says Reynolds told him, "There aren't any exceptions to the rule."
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That's exactly what Houston attorney John Parras was told in November by officials at Lubbock's Montford Unit prison when he requested an unmonitored phone call with an inmate client. "We talked about some things," says Parras of his client, "but the sensitive issues we had to deal with by letter." Had his client been of the one in four Texas prisoners who are functionally illiterate, Parras would have needed to travel from Houston to Lubbock to ensure confidentiality.
Hampton ended up flying to Amarillo. The 30-minute meeting cost him a day out of the office. Hampton's death row client was indigent, and taxpayers footed the bill for time and the airplane ticket.
TDCJ's monitoring rule no longer exists. According to policy adopted by the agency December 14 -- under threat of court intervention -- prison guards will no longer listen in on attorney-inmate phone calls. Well, they probably won't.
Attorneys Yolanda Torres and Meredith Rountree, through the American Civil Liberties Union, sued the prison system in 1999 to challenge the phone monitoring practice as a violation of attorney-client privilege. Torres's client, Mark Knox, was suing four TDCJ guards who he claimed beat him senseless in an altercation at Huntsville's Estelle Unit (see "Hard Knox," by Steve McVicker, February 8).
Torres was incredulous when she discovered that her discussions with Knox would be heard by co-workers of the guards she believed had brutalized her client. When she couldn't come to an agreement with TDCJ, Torres filed suit in federal court, citing the Sixth Amendment's guarantee of confidential communications between lawyers and their clients.
Testimony at that trial indicated that Texas's was the only prison system in the nation that monitored attorney phone calls. TDCJ, citing concerns about escapes, criminal schemes and just plain ol' gossip, fought hard to maintain listening privileges (see "Party Lines," by Steve McVicker, November 2, 2000).
U.S. District Judge Simeon T. Lake made it clear to attorneys for the state that they'd best rethink their policy lest he rethink it for them. He granted Torres unmonitored calls with Knox and directed TDCJ to meet with ACLU prison experts to devise a policy both sides could live with.
That meeting never happened. Torres says TDCJ officials refused to confer with her experts. And the "new" phone policy is not really new; it's merely the old policy minus a section that had stated that attorney-inmate phone calls must be monitored. After Judge Lake's dictum, it took TDCJ's legal team a year -- and a September letter from Torres and Rountree threatening further legal action -- to remove the offending paragraph from the policy manual.
Reynolds, TDCJ general counsel, has assured Torres and Rountree that there will be no further monitoring of attorney phone calls, but others are skeptical.
Steve Martin, TDCJ's former general counsel, says, "I'm not sure whether the department is going to monitor phone calls or not. It's drafted in a manner where, at their discretion, they can monitor."
Martin refers to a caveat that permits TDCJ's 100-plus wardens to "enforce stricter security conditions if it is determined that such a communication would appear to be an abuse of TDCJ policy." The new policy does not expressly prohibit monitoring. One section details how suspicious information learned via monitoring should be documented.
Another part appears to give prison wardens leeway to disallow any call from an attorney who offices within 200 miles of the prison holding the client. Some attorneys who specialize in representing prisoners believe that wardens could use this as justification to simply deny most phone call requests.
The policy's details, and its exemption for prosecutors, riles Hampton. "This is a rigged policy drowning in a sea of exceptions," he says. "Attorneys are officers of the court, and they are not respecting that."
Reynolds characterized objections to the policy's minutiae as "counterproductive" and "pretty abstract." He says all TDCJ policies are "constantly evolving" and that "it's an internal document -- public, but internal -- intended to guide [prison wardens'] behavior, and it may not be clear to people on the outside."
One of those who still finds the policy unclear is state Representative Jessica Farrar. The Houston Democrat submitted a rider from the House Appropriations Committee last session that would have made the monitoring practice illegal. She withdrew the bill after TDCJ officials indicated they would resolve the issue administratively. "I was told by the TDCJ that the problem would be worked out," she says. "I understand there are still glitches, and if they don't do something by next session, I'll file a bill."
Reynolds says that he doesn't recall anyone in the department having any contact with Farrar about that legislation.
Reynolds concedes the policy might have minor problems and that all references to monitoring probably should be removed. However, he says, "We just revised it. We're not going to re-revise it." Reynolds is emphatic that they "consciously mean to end the policy of monitoring."
Martin questions the agency's intent. "If you wanted to promulgate a policy that would eliminate monitoring, you'd do so in a clear, unequivocal manner. This policy doesn't do that."
Torres and Rountree will monitor the issue through the ACLU's Prison and Jail Accountability Project, which they head. The pair are encouraged by the shift in policy, but they are mindful that it took a lawsuit to prompt the change. And they wonder about its implementation.
"It's the same old TDCJ bullshit," says Torres. "Delay, delay, delay -- only do something when your back's against the wall, then make it as cumbersome as possible."
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