When it comes to the United States Constitution and how it affects a person suspected of committing a crime, perhaps the most important amendment is the Sixth Amendment, which states:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
It was this last part of the amendment which was cited in a recent appeal to the San Francisco-based 9th U.S. Circuit Court of Appeals, wherein Arizona death-row inmate Scott Nordstrom alleged that his Sixth Amendment rights had been violated. Nordstrom claimed that a prison guard was reading his private correspondence with his attorney.
A Case for the Sixth Amendment
While Nordstrom also contends in a legal brief filed with the Court of Appeals by pro bono counsel from students at the University of St. Thomas School of Law that this reading of his mail was also a violation of his right to free speech (First Amendment) and due process (Fourteenth Amendment), it was primarily the Sixth Amendment violation which was the subject of the Court of Appeals decision.
Nordstrom originally filed his complaint with the District of Arizona in November of 2011, with an amended complaint in February of 2012. He alleged that a jail officer had read his two-page outgoing letter to an attorney appointed to represent him on an appeal to his death sentence, even though Nordstrom repeatedly objected to the officer’s actions. The Director of the Arizona Department of Corrections stated in writing that prison staff “is not prohibited from reading the mail to establish the absence of contraband and ensure the content of the mail is of legal subject matter.”
Nordstrom claimed this action chilled his communications with his attorney and interfered with his attorney-client relationship as guaranteed by the Sixth Amendment to the U.S. Constitution. In March of 2012, U.S. District Judge David Campbell dismissed Nordstrom’s lawsuit by a preliminary screening order, stating the case had no merit and should not be pursued. However, in a 2-1 ruling on Monday, August 11, the 9th U.S. Circuit Court of Appeals reversed the district court action.
Sixth Amendment Protection Doesn’t End at Prison Walls
The question at hand comes down to semantics, a question of the difference between “scanning” outgoing mail and outright “reading” it. According to the Arizona Department of Corrections official policies, outgoing legal mail–identified by the inmate writing “Legal Mail” on the lower left corner of the envelope–“shall not be read or censored but shall be inspected for contraband and sealed in the presence of the inmate.” [ADC Order 902.11]. However, the lines get fuzzy as one continues to read through the policy, which does indeed state that staff “is not prohibited from reading the mail” [ER 93 (Addendum at 6)].
Regardless of these ambiguities of policy, Judge Barry Silverman of the Court of Appeals, writing for the majority said, “A criminal defendant’s ability to communicate candidly and confidentially with his lawyer is essential to his defense . . . a prisoner would not feel free to confide in his lawyer such things as incriminating or intimate personal information–as is his Sixth Amendment right to do– if he know that the guards are reading his mail . . . We hold today that [Nordstrom’s] allegations, if true, state a Sixth Amendment violation.”
When attorneys for the State of Arizona argued that prison officials weren’t doing anything wrong because the mail review took place in the inmate’s presence, Silverman stated that the reason an inmate is present when legal mail is opened was for the inmates’ own protection and “designed to prevent officials from reading the mail in the first place.”
Silverman did concede that he believed courts weren’t the best place to be second-guessing how prisons should be run, however, he went on to write, “Nonetheless, prison walls do not form a barrier separating prison inmates from the protections of the Constitution.”
As a result of the Court of Appeals decision, the case will be sent back to Phoenix for further action. While the decision won’t have an effect on his convictions or his death sentence at this point, according to Gregory Sisk, a professor at the University of St. Thomas School of Law who handled the appeal with his students, it will help Nordstrom to more effectively work with his appointed criminal defense attorney in an attempt to overturn the convictions.