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Reading Death Row Prisoner’s Legal Mail States Sixth Amendment Claim

Reading Death Row Prisoner’s Legal Mail States Sixth Amendment Claim

by David Reutter

The Ninth Circuit has held that a prison guard’s act of reading a prisoner’s legal mail – not merely inspecting or scanning it – constitutes a Sixth Amendment violation.

The Court of Appeals reversed a district court’s order dismissing, at the screening stage, a pro se civil rights action filed by Arizona death row prisoner Scott D. Nordstrom. Nordstrom alleged in his complaint that on May 2, 2011, he prepared a letter to mail to an attorney challenging his murder conviction.

The letter was placed in an envelope marked legal mail and addressed to “Attorney at Law Sharmila Roy, Esq.” Prison guard F. Hawthorne was conducting a security walk when Nordstrom informed him that he had legal mail ready to be processed. Hawthorne removed the correspondence from the envelope and “read the content.”

Nordstrom protested that the letter was a confidential attorney-client communication that should not be read. Hawthorne, according to the Ninth Circuit, “told him to go pound sand.” After exhausting his administrative remedies Nordstrom filed a lawsuit claiming that he was forced “to cease conveying critically sensitive information concerning necessary aspects of his case for appellate adjudication to his attorney,” because prison officials had stated in response to his grievance that they could read his outgoing legal mail. The district court dismissed the suit for failure to state a claim and Nordstrom appealed.

In U.S. criminal law, “the right to privately confer with counsel is nearly sacrosanct,” the appellate court wrote in an August 11, 2014 decision. “It is obvious to us that a policy or practice permitting prison officials to not just open or scan, but to read an inmate’s letters to his counsel is highly likely to inhibit the sort of candid communications that the right to counsel and the attorney-client privilege are meant to protect.”

The Court of Appeals stated it “takes no stretch of the imagination” to conclude a prisoner would become reluctant to disclose personal or legal details related to his case “if he knows that a guard is going to be privy to them, too.” Supreme Court precedent requires the opening of a prisoner’s incoming legal mail in his presence “to prevent officials from reading the mail in the first place.”

The Ninth Circuit emphasized that prison officials are not prevented from inspecting a prisoner’s outgoing legal mail in his presence, to ensure that it does not contain, for example, a “map of the prison yard, the time of guards’ shift changes, escape plans, or contraband.”

However, Nordstrom presented a claim that, if proven true, would constitute the chilling of his Sixth Amendment right to private consultation with counsel, which would in turn entitle him to injunctive relief. As such, the district court’s order of dismissal was reversed, with Justice Jay Scott Bebee (the author of a controversial “torture memo” during the Bush administration) issuing a dissenting opinion. The case remains pending on remand and Nordstrom remains on death row. See: Nordstrom v. Ryan, 762 F.3d 903 (9th Cir. 2014).


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Related legal case

Nordstrom v. Ryan