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Arizona Supreme Court Clarifies Rules for Asserting Attorney-Client Privilege for Communications from Jail, Including Texts Using Tablets

by Matt Clarke

On February 9, 2022, the Supreme Court of Arizona ruled that a defendant who asserts attorney-client privilege for communications made from jail to his attorney, including text messages, video visits and phone calls, may not rely on a blanket exception but must make a prima facie showing that each communication is privileged.

While in pretrial detention for capital murder at a Maricopa County Sheriff’s Office (MCSO) jail, Shavonte Deshawn Beasley used a Telmate tablet to text members of his defense team, including a paralegal and a mitigation specialist helping with his claim that he was ineligible for the death penalty due to intellectual disability.

Posted jail regulations stated that tablet communications were not privileged and the only way to have a privileged telecommunication was to use the jail’s designated legal telephone. Moreover, two days after Beasley received his tablet, a jail official emailed Beasley’s attorney and explained that text messaging using the tablets was not privileged, though an application to permit privileged video visits on the tablets would soon be available. Two weeks later, the official emailed all the defense attorneys and the mitigation specialist, Anna Nelson, that the app would be available March 1, 2020, but privilege would not apply to text messages.

Nelson emailed MSCO a request to use the app for privileged communications. She received a reply that “[f]or purposes of mitigation, this account has been marked professional, not recorded, and free.”

On March 11, 2020, the state served a subpoena duces tecum on MCSO seeking all of Beasley’s texts in order to dispute his claim of intellectual disability. The subpoena stated that it was “not seeking any legal correspondence,” but MCSO sent all of Beasley’s texts anyway, including hundreds with Nelson and 20 with the paralegal.

The prosecution read and analyzed the texts, then furnished copies to the defense team and filed a motion to determine whether the texts were privileged. The court ruled that the communications with Nelson and the paralegal were privileged not only because they made efforts to secure them but also because Beasley believed they were privileged, and the prosecution had not shown that he waived his attorney-client privilege. After the state sought special-action relief unsuccessfully, it petitioned the Supreme Court for review.

The Court granted review, with Phoenix attorneys Daniela De La Torre and Michael S. Reeves representing Beasley. At the outset, the Court noted that after the trial court had made its decision, but before the state moved for reconsideration, it had decided Clements v. Bernini ex rel. County of Pima, 249 Ariz. 434 (2020), holding that a party claiming attorney-client privilege must make a prima facie showing that it applied to each contested communication. The communications may be grouped, if they share a common nature and purpose, but a blanket privilege is not permitted. Therefore, it vacated the ruling that Beasley’s communications were privileged and clarified that, if a prima facie showing is made, the party contesting privilege must “demonstrate a good faith basis that an in-camera review of the communication would reveal waiver of the privilege” or it must be held to be privileged.

The trial court was instructed on remand to determine whether the privilege had been waived by the jail regulations and emails warning the texts were not privileged, as well as whether Beasley’s claim that the legal telephone was unavailable due to pandemic restrictions rendered privilege not waivable and whether the issue was moot because the state no longer sought the death penalty. See: State ex rel. Adel v. Adleman, 503 P.3d 120 (Ariz. 2022). 

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Related legal case

State ex rel. Adel v. Adleman