A mental patient imprisoned at a treatment center run by the Massachusetts
DOC brought a § 1983 action alleging constitutional violations relating to,
among other things, inadequate telephone privileges, right to unopened
privileged mail and right to treatment. A Superior Court issued an
injunction ordering prison officials to comply with regulations regarding
"process and delivery of plaintiff's mail and telephone access." In
addition, prisoner's refusal to volunteer to be double bunked could not
affect his privilege status. However, the Superior Court refused to award
attorney fees and the prisoner appealed.

A Massachusetts appeals court held that according to the standards set
forth by the U.S. Supreme Court, the prisoner was the "prevailing party"
and therefore entitled to an attorney fee award under 42 U.S.C.A. § 1988.
See: Miller v. Commissioner of Corrections, 36 Mass.App.Ct. 114, 629 N.E.2d
315 (Mass. 1994).

A U.S. District Court held that Special Administrative Measures (SAMs)
were valid as to the detention of a pretrial detainee, but defense
attorneys need not give affirmation as to their acknowledgment of the
SAMs. 28 C.F.R. §501.3(a) (Prevention of acts of violence and terrorism)
(1996), allows the imposition of special restrictions, which are assessed
and implemented in each case individually "on any federal prisoners"
if "there is a substantial risk that a prisoner's communication or
contacts with persons could result in death or serious bodily injury" to
others.

After his alleged attempt to blow up a passenger airliner, the federal
government placed SAMs on Richard Reid which, among other things,
restricted his defense attorneys from disseminating the contents of his
communications. Moreover, the government ordered defense attorneys to sign
an affirmation acknowledging the SAMs, and defense counsel refused. The
district court held that the SAMS were valid as they applied to Reid, but
defense attorneys were not required to sign the affidavits. See: United
States v. Reid, 214 F.Supp.2d 84 (D.Mass. 2002).

A California federal district court held the conditions at the Los Angeles
County Jail were unconstitutional. This class action suit resulted in a
non-jury trial that alleged violations of the pre-trial detainees'
constitutional rights under the Fourteenth Amendment.

The court found the detainees are kept at the jail, for weeks or months at
a time, in poorly ventilated and dimly lit cells, without any view of the
outdoors; without adequate facilities for personal hygiene; being obliged,
in effect, to take all of their meals in the "bathroom" and without any
opportunity for recreation or regular physical exercise worthy of the name.
The court held this is constitutionally intolerable.

The court also found that detainees scheduled for court appearances are
awakened at 3:30 A.M. and normally returned to the jail at 9:00 P.M., but,
sometimes not until 11:00 P.M. For detainees who have trial scheduled for
successive days, this procedure is repeated. Subjecting a detainee to this
procedure for one day, while he is undergoing the emotional strain inherent
in attending his own trial or other court proceeding, would bring him to a
condition of physical and nervous exhaustion by early afternoon. To require
it of him on successive days is ...

The US District Court Of Alabama ruled on a action brought by the prisoners
at the Choctaw County jail. The prisoners complained of numerous violations
of state codes for safety, and violations of their constitutional right to
be free from cruel and unusual punishment as guaranteed in the Eighth
Amendment, as well as pretrial detainees' due process right not to be
punished as guaranteed by the Fourteenth Amendment. The complaint listed 15
separate causes of action against the county, ranging from First Amendment
violations for censorship of mail to denying the right to practice religion
freely. The Court ruled in favor of the prisoners on several issues
including: 1. Fire Safety: the court found that there were Fire Safety
Violations that the state failed to correct. 2. Health Care: (1) the county
failed to screen prisoners for contagious diseases; (2) insufficient review
by trained medical personnel of decisions made regarding the care to be
provided in individual cases; (3) undue and unexplained delays in the
delivery of health care; (4) lack of training of jail personnel in basic
emergency health techniques; (5) use of prisoner trusties to dispense drugs
and make records; (6) insufficient health care records. 3. Food Service: ...

The California First District Court of Appeal has held that pre-trial
detainee's have a right to a direct line telephone to the public defender's
office (PDO). The Court found that a newly installed collect-only phone
system denied jail prisoners reasonable access to counsel where the extra
cost of collect calls prohibited the PDO from being able to accept those
calls. The court affirmed the trial court's order requiring a free
telephone line from the jail to the PDO. See: In Re Grimes, 208 Cal. App.
3d 1175, 256 Cal. Rptr. 690) (1989).

Attorney/Client Privileged Waived When Conversation Knowingly Recorded;
Interstate Commerce Proven With De Minimus Effect


The Eighth Circuit Court of Appeals held the government proved that
robberies of a jewelry store affected interstate commerce and the tape
recorded conversations of co-conspirators and their counsel waived
client-attorney privilege. This case was won on appeal after three
defendants were found guilty of, inter alia, interference with interstate
commerce by armed robbery of several Kansas City area jewelry stores.
The defendants argued the robberies did not substantially affect interstate
commerce. The Court held the government need prove only a de minimus effect
on interstate commerce, and stated "traditionally, the government meets the
de minimus standard under the depletion of assets theory. The government
presents evidence that a business is either actively engaged in interstate
commerce or customarily purchases items in interstate commerce, and has its
assets depleted by the robbery, thereby curtailing the business potential
as a purchaser of such goods." The Court found there was testimony the
jewelry stores regularly purchased their jewels from out of state sources,
and used those sources to replace the jewels stolen during the robberies.
Thus, there was sufficient evidence to support the jury instruction on
interstate commerce ...

Federal prisoner Gary Friedman filed a motion to suppress tape recordings
of certain telephone conversations that he made to his brother (an
attorney) while in county jail. The trial court denied Friedman's
suppression motion. Friedman appealed, claiming that the tape recordings of
these telephone conversations were obtained without a warrant in violation
of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the
"Act") and the Fourth Amendment.

The appellate court held that the secret monitoring and recording of
unprivileged conversations in jails, prisons, and police stations do not
constitute an unlawful search. The Court further held that the tape
recordings of Friedman's telephone calls to his brother were made during
routine monitoring of telephones located in cells at the county jail and
was a security measure that fell within the law enforcement exception to
Title II of the Act. See: People v. Friedman, Case No. B175695, 2005 WL
1662224 (Cal.App. 2 Dist., 2005) (Not reported in Cal.Rptr.3d).

By Bob Williams


On December 1, 2004, the Louisiana Supreme Court held the Caddo Parish
Sheriff's (Steve Prator) state court lawsuit against Caddo Parish was
decided in error by the State appellate court. Prator alleged in his
petition for declaratory judgment that the Parish was not entitled to
revenues generated at the Parish jail for commissary, telephones, vending
machines, and medical expenses for federal prisoners.

The trial court held that the Parish was not entitled to these revenues
because the Sheriff used them to offset jail expenses otherwise borne by
the taxpayers. On appeal, the appellate court held there was no
justiciable controversy regarding these issues. On certiorari, the State
Supreme Court reversed finding a justiciable controversy regarding the
revenue issue. The Supreme Court remanded this matter to the appellate
court to determine who should receive credit for housing out-of-Parish
prisoners at Caddo jail. See: Prator v. Caddo Parish, 888 So.2d 812 (La.
2004).

Florida's Fifth District Court of Appeals has held that a prisoner is not
entitled to claim attorney/client privilege to communications when the
person invoking the privilege knew of or should have known that the
privileged conversation was being overhead.

Before the court was the criminal appeal of Isa Black, who argued the
trial court abused its discretion by admitting testimony of his former
attorney and a tape recording of a telephone conversation with that
attorney. Black called his sister, who initiated a third-party call with
the attorney. During the conversation, the sister stayed on the line. The
conversation contained incriminating information: It was also recorded by
jail authorities in Orange County.

The Court said that under § 90.502(1)(C), Florida statutes a communication
between lawyer and client is confidential if it is not intended to be
disclosed to third persons other than:

1) Those to whom disclosure is in furtherance of the rendition of legal
services to the client.

2) Those reasonably necessary for the transmission of the communication.

The court held that because Black's sister was purposely included in the
conversation and Black knew or should have known the communication was
being monitored and taped by jail officials, the trial ...

The U.S. Supreme Court held that status as a Cabinet Officer is not in
itself sufficient to invest that officer with absolute immunity from suit.
In 1970, Attorney General John Mitchell authorized a warrantless wiretap
of William Davidson's telephone for the purpose of gathering intelligence
regarding the activities of a radical group known as the East Coast
Conspiracy to Save Lives. The Federal Bureau of Investigation learned of
an alleged plan to blow up heating tunnels linking federal buildings in
Washington, D.C., and the possibility of kidnapping then National Security
Advisor, Henry Kissinger. The tap was installed from November 1970 until
January 1971. Three conversations between Davidson and Keith Forsyth were
intercepted. The Supreme Court in U.S. v. U.S. District Court, 407 U.S. 297
(1972) (Keith), held the Fourth Amendment does not permit warrantless
wiretaps in cases involving domestic threats to national security.

Keith Forsuth then filed a damages action in Federal District Court against
Mitchell arguing the surveillance he had been subjected to violated the
Fourth Amendment and Title III of the Omnibus Crime Control and Safe
Streets Act. The District Court granted Forsyth's motion for summary
judgment on the issue of liability, holding Mitchell was not entitled to ...