View of the main entrance to the Metropolitan Detention Center in Brooklyn (Zuma Press/Charlie Neuman)
Defense attorneys are challenging a policy at the Eastern District U.S. Attorney’s Office that considers inmate-attorney emails sent through a government-operated system as not privileged and fair game for government review.
In June, James McGovern, the criminal division chief in the Eastern District office, wrote the Federal Defenders of New York to apprise the organization of its policy regarding emails between Metropolitan Detention Center inmates and their attorneys transmitted through a system dubbed TRULINCS.
Although the system has notified senders and recipients that their communications were not privileged, it was not uncommon for Eastern District prosecutors to use firewall attorneys to weed out attorney-client correspondence before a prosecutor reviewed an inmate’s emails.
Given constraints on time and manpower, McGovern’s letter made clear no firewall would be used.
McGovern cited rulings from various federal appellate courts, including the U.S. Court of Appeals for the Second Circuit, as well as a 2006 American Bar Association letter on TRULINCS, when writing that “emails between inmates and their attorneys sent over the TRULINCS system are not privileged, and thus the office intends to review all emails obtained from the TRULINCS system.”
McGovern sent the letter to Peter Kirchheimer, attorney-in-charge of the Federal Defenders’ Eastern District office; Eastern District Chief Judge Carol Amon; and Magistrate Judge Cheryl Pollak, chair of the Eastern District Criminal Justice Act Panel Committee.
Defense attorneys in at least three recent cases have challenged the policy with mixed results.
In court papers, defense attorneys have asked judges to use their “broad powers” to control the proceedings, including how discovery unfolds. Rather than insisting the emails are privileged, the defense has argued that the policy frustrates a defendant’s right to access of counsel and wastes time and money finding alternative means of communication, especially in cases involving appointed counsel.
As a practical matter, counsel say it is difficult to have unmonitored calls or personally meet a client in prison.
Prosecutors have argued that the access to counsel argument is unconvincing because the policy does not “unreasonably interfere” with a defendant’s ability to prepare a defense through the other permitted channels.
And they insisted they were not making a play to get the strategic upper hand, especially since the defense was on notice about government review.
The Eastern District, among the largest and busiest offices in the nation, acknowledged courts and public defenders had budget constraints, but argued that it, too, was “understaffed” and chose not to use “finite resources to continue taint-team review procedures.”
In late June, Judge Dora Irizarry (See Profile) took the prosecution to task on the policy during a court appearance in U.S. v. Ahmed, 14-cr-277. “The government will be precluded from looking at any of the attorney-client e-mails, period,” she said (See Transcript).
But last week, Judge Allyne Ross (See Profile) denied a defense preclusion bid, saying in U.S. v. Asaro, 14-cr-26, “The government’s policy does not ‘unreasonably interfere’ with [defendant's] ability to consult his counsel, as other means of privileged communication remain open to him, including phone calls, mail, and in-person visits with his attorney.”
Another preclusion bid is pending before Judge Margo Brodie in U.S. v. Walia, 14-cr-213.
David Patton, executive director and attorney-in-chief of Federal Defenders of New York, said he has had discussions with McGovern, as well as Southern District Criminal Division Chief Joon Kim and Kim’s predecessor, Lorin Reisner.
Patton said the Southern District also takes the view that TRULINCS emails are not privileged and subject to monitoring. “I think there are going to be further discussions. I’m hopeful we can work something out,” he said.
“Our office is meeting with all parties involved in an effort to reach a mutually acceptable resolution of the issue,” said Eastern District spokesman Robert Nardoza.
A spokeswoman for the U.S. Attorney’s office in the Southern District declined to comment.
Patton said defense attorneys, both in and out of his office, “are really upset by this policy. Attorney-client relationships and the confidentiality of that relationship is at the core of what we do. The idea that prosecutors would intrude on that relationship by reading our communications is deeply troubling.”
Patton said attorneys in his organization will be deciding on a case-by-case basis whether they will take the issue up in court. “By and large, attorneys are going to be very wary of using the email system at all. Which doesn’t benefit anyone.”
“All actors in the system”­—judges, prosecutors, the Bureau of Prisons­—are aided by more attorney-client communication, he said, adding that attorneys would have be cautious with sending even simple correspondence for fear that clients could say something substantive as a response.
Around 2006, the Bureau of Prisons began using TRULINCS, an acronym for the Trust Fund Limited Inmate Computer System. That same year, the American Bar Association urged the bureau to expand the system.
“Although presenting confidentiality concerns, TRULINCS greatly enhances the attorney-client relationship by supplementing unmonitored forms of communication that is, legal mail, legal calls and professional visiting. It affords attorneys and their incarcerated clients the possibility of making expedited contact when quick decisions must be made or non-privileged information relayed,” the ABA said in a letter to the bureau.
Five years later, in 2011, the U.S. Court of Appeals for the Second Circuit ruled in U.S. v. Mejia, 655 F.3d 126, that an inmate on notice about prison authorities recording his calls could not assert the attorney-client privilege.
There is no Second Circuit decision on whether attorney-client privilege attaches in TRULINCS correspondence.
In the wake of Mejia, Richard Levitt of Levitt & Kaizer said, “I think most attorneys accepted that probably as a matter of law, not policy, [the lack of privilege] applied to email as well.” As a result, he said, many colleagues were “circumspect in email.”
McGovern’s letter “brought the issue back into the forefront” Levitt said.
He acknowledged the law “seems to support” the government position that it can review attorney-client correspondence. “But it’s not just an issue of what the law requires, it’s also an issue of what fairness demands,” Levitt said, noting he recently asked an Eastern District prosecutor not to read any TRULINCS emails but the prosecutor said he was in no position to make such a representation.
In the health care fraud case before Irizarry, a transcript of the June court appearance showed she grilled Assistant U.S. Attorney F. Turner Buford, who told the court that TRULINCS lacked functioning to filter out certain emails.
Irizarry said she found it “hard to believe” the government could not devise a “simple program” to filter out certain correspondence.
And though Buford said the government was not interested in reading attorney-client emails, Irizarry called the claim “hogwash.”
“You’re going to tell me you don’t want to know what your adversary’s strategy is? What kind of a litigator are you then? Give me a break,” she said.
The judge said the prosecution’s budget, under the executive branch, was much larger than budgets for the courts or defense counsel. “So forgive me if I’m not overly sympathetic to the issue of the government having to put up a taint team,” she said.
Ross’s decision came in the government’s case against Thomas DiFiore, who was allegedly connected to the organized crime family linked to the high-profile 1978 robbery of a Lufthansa jet at John F. Kennedy International Airport, a heist that was featured in the film “Goodfellas.” Ross said she sympathized with the defense concerns but concluded there was “insufficient legal basis” to say the absence of such a medium breached DiFiore’s Sixth Amendment right to counsel.
The judge said DiFiore did not allege any interference through other communication methods, other than counsel’s “expending time and funds on traveling to visit him and the inconvenience of having to arrange phone calls in advance.”
By launching TRULINCS, the Bureau of Prisons “significantly increased” an inmate’s ability to communicate with the outside world, including with their counsel, even if not currently in a privileged form,” the judge said.
She added it would be “a welcome development” if TRULINCS could be improved to segregate attorney-client communications.
In an interview, Bruce Green, a professor at Fordham University School of Law specializing in ethics and criminal law, said lawyers representing prisoners can face logistical and financial constraints that trip up regular attorney-client contact. “The ethical expectations get watered down in criminal cases, because as a practical matter you can’t demand lawyers do what ethics rules say they supposed to do,” Green said, adding that the email policy was an example of that relaxed expectation.