As even casual visitors know, correctional officers monitor every aspect of a convict's life. But a federal judge in Houston soon could be changing one part of those strict policies. Texas inmates may get the same basic right now afforded to federal convicts: to talk privately with their attorneys on the phone. Long-standing rules of the Texas Department of Criminal Justice require that prison staff listen in on such calls.
"It's important that the attorney and the client know that their privileged communications will stay between the client and the attorney," explains attorney Yolanda Torres, a volunteer with the American Civil Liberties Union.
Indications of a breakthrough for prisoner rights surfaced earlier this month, in a pretrial hearing on Torres's lawsuit filed on behalf of convicted rapist Mark Knox. The convict is suing TDCJ for $600,000, alleging he was the victim of an unprovoked attack last year by four prison guards at the Estelle High Security Unit near Huntsville (see "Contents Under Pressure," by Steve McVicker and Lauren Kern, October 12).
U.S. District Judge Simeon T. Lake III warned attorneys representing the TDCJ that state prison officials need to seriously reconsider their policy of monitoring attorney calls -- unless they want Lake himself to revise it for them.
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Lake raised the concerns in an October 13 session in the Knox case, now set for trial on January 16. Torres outlined to the judge the logistical problems she faces in interviewing the plaintiff and other convicts to prepare for the case. Torres lives and works in Dallas; Knox has been transferred among far-flung locations such as prison units in Amarillo and Beeville, hampering Torres's efforts to talk to him in person. She tried to arrange private phone conferences with her client. However, she quickly discovered that TDCJ refused to allow her to speak privately with Knox -- someone from TDCJ also had to be on the phone line to monitor the conversation.
Anti-privacy regulations have been a standard part of the prison system's policy on calls. The Houston Press obtained the TDCJ's written "administrative directive," which states that confidentiality between attorneys and inmates "shall only be assured during personal visits and correspondence as phone calls shall be continually monitored by staff listening in on an extension line." Indeed, even TDCJ's top in-house lawyer, Carl Reynolds, acknowledged in his article last April for Voice for the Defense magazine that the Texas prison system has a very repressive phone procedure.
"TDCJ has traditionally had one of the most restrictive offender [telephone] access policies anywhere, allowing only one call every 90 days to those offenders allowed any access," wrote Reynolds, the prison system's general counsel. "Attorney-client [telephone] access is also quite restrictive, and attorneys need to be prepared to visit their clients in prison to transact business effectively."
During the hearing, Assistant State Attorney General Robert Maddox said the policy was established to prevent inmates or their attorneys from hatching illegal schemes. He added that Gary Johnson, TDCJ's institutional division director, feels very strongly about the need for the rule.
However, Judge Lake indicated he didn't much care about Johnson's feelings. While insisting he had not definitely made up his mind about ordering revisions to the phone policy, the judge said he's aware of the right of attorneys and inmates to private phone calls in other penal systems, such as the federal Bureau of Prisons.
"I'm looking at this issue," Lake told Maddox, "and right now" Knox and the ACLU "have the better side of things."
Lake suggested that the phone policy appears to be violating the Sixth Amendment to the U.S. Constitution, which guarantees an accused person unconditional access to legal assistance. The judge added that Johnson needs to determine whether he would be better off changing the policy himself, or having Lake modify it.
"I think [TDCJ] ought to talk about it," said Lake. However, Lake also advised the ACLU's Torres that he had not yet come to a final decision and that she should not think she and her client were "home free." Nevertheless, Lake's comments were encouraging to Torres.
"The attorney-client privilege is a fundamental principle of the legal profession," says Torres. "It's a bedrock, and it's essential to our ability to counsel and represent our client."
Meanwhile, attorneys for TDCJ had their own warnings for the judge on another matter. State Assistant Attorney General Bruce Garcia wrote Lake on October 18 of his concerns about the Press feature article on the Knox suit and other allegations of brutality by guards. Garcia's letter questioned the pretrial publicity and impact on jury selection. He also complained about the Press obtaining what Garcia believed to be sensitive and confidential information on TDCJ.
Garcia then referred to the judge's ruling that granted the state's motion for an emergency order to protect some evidence in the case. "It appears that some of the information used in the article is in violation of the court order," wrote Garcia. "Should the court feel that additional investigation is warranted to determine how this non-public information came to be in the possession of the Houston press [sic], the office of the Attorney General is willing to cooperate to the extent the court deems necessary."
The issue of a news-related investigation never came up during the hearing. Judge Lake did tell Garcia that he did not believe pretrial publicity would be a problem in the case.
"No offense to the Houston Press," Lake added.
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