By Kelli Smith
The Dallas County Sheriff’s Department is opening attorneys’ letters meant for jailed clients, prompting outcries from defense lawyers who argue the information is privileged and jailers aren’t following legal procedures.
Elizabeth Lutton, a legal advisor for the Dallas County Sheriff’s Department, told the Dallas County Criminal Defense Lawyers Association last week employees open all letters, including from attorneys, to look for contraband, particularly as jails nationwide “are experiencing a security issue with paper correspondence,” according to a letter obtained by The Dallas Morning News.
Lutton wrote “it is true that incoming inmate privileged mail from attorneys is opened and inspected,” but said that’s only done in the presence of the inmate and inspection is “limited to locating contraband or illegal items.”
But four North Texas defense attorneys told The News their jailed clients reported they weren’t present when the letters were opened. The lawyers said other clients told them letters were scanned and photocopied, with the original thrown in the trash, and other correspondences were delivered to inmates electronically with no word on what happened with the original.
The attorneys expressed concern that someone other than their clients could read the letters, which often discuss legal strategy and a person’s guilt or innocence. Doing so, they said, would violate their clients’ constitutional rights. The association demanded answers from the sheriff’s department and threatened to take the matter to court.
“We wanna know what’s going on,” Deandra Grant, president of the association, told The News. “What we know is happening is not in compliance with the law. And we don’t want this to evolve into litigation, but we’re not just gonna sit back and let [county officials] violate our clients’ constitutional rights.”
It is unclear whether the sheriff’s department found contraband in any letters, including those from attorneys. The department issued a statement Monday to The News saying employees copy and shred the letters in front of inmates to “keep chemical laced envelopes and letters out of the hands of the inmates.” It added “no letters are opened outside of the inmate’s presence.”
The sheriff’s department did not address questions including how long jailers have opened attorney letters, whether there was an internal policy change and what prompted searches for contraband in attorney letters.
In the letter to the association, Lutton said “no attorney mail is being placed onto electronic tablets” and outgoing mail from the inmate to the attorney “is not opened at all.” She said officers who handle the mail are trained in a process approved by the Texas Commission on Jail Standards.
Commissioner John Wiley Price said in an email to the association that the allegations were “NOT TRUE ! We have cameras ! The mail is a security issue and has been addressed appropriately.”
Price did not respond to a request for comment. It is unclear what Price meant when he wrote that matter had been addressed.
Commissioner J.J. Koch said in an email to The News “the bottom line is that multiple defense attorneys are stating that they are having their mail to clients either lost or improperly screened. This is a constitutional issue.”
Michele Deitch, director of the Prison and Jail Innovation Lab at the University of Texas, said mail between attorneys and their clients is privileged, and infringing on that communication violates incarcerated people’s Sixth Amendment right to counsel.
Deitch called the allegations “problematic.”
“It makes it impossible for attorneys to effectively represent their clients if they cannot have that confidential communication with them,” she said.
Deitch said while some jails may inspect mail for illicit substances, jailers should not read or interfere with the mail’s content. “There’s usually a level of trust there that [attorneys and clients] are using mail for legitimate purposes,” she said.
In the letter to the defense lawyers association, the sheriff’s department cited the 1974 Supreme Court ruling in Wolff vs. McDonnell, saying the case allows jailers to open letters — even from “apparent attorneys” — while searching for contraband.
But the defense lawyers association countered that their clients aren’t in prison — they’re people accused of crimes. They haven’t been convicted, so they have the presumption of innocence and a different standard for intrusion of personal rights.
The group said the sheriff’s department also excluded the rest of the ruling. The ruling mandated that letters sent by attorneys are clearly marked, inmates must be present when the attorney’s letter for them is opened and the employees cannot read the correspondence.
The sheriff’s department told the association the correspondences are opened in front of the inmate and a copy is made for the inmate. The original is then “destroyed,” Lutton wrote.
If the jail followed that process, “everything would be fine, but that’s just not what’s happening,” said Grant, the president of the association. “And [Dallas County Sheriff Marian Brown] doesn’t seem to be taking it real seriously.”
Grant said defense lawyers became aware of the issue about a month ago and asked more clients in the jail how they received attorneys’ letters. The attorneys heard different answers, Grant said.
Attorney Johnny Lanzillo said his client told him he had a hard time reading a form Lanzillo sent because it wasn’t copied well. Another client told him one of Lanzillo’s letters was copied and the original was thrown in the trash, he said.
“If they’re just throwing a letter that they think may have drugs on it in the trash, well, that’s easily accessible by anybody,” Lanzillo said. “So they’re not even actually destroying it.”
Lanzillo said the jailers previously gave the inmates attorneys’ letters directly without opening them. He said the letters can contain statements regarding the client’s guilt or innocence and trial strategies.
“I’ve had clients in jails in Ellis and Kaufman and Tarrant and Collin and Denton counties that I’ve sent mail out to and I’ve never had anything like this come up,” Lanzillo said. “I’m just curious why it specifically is now happening on our attorney letters.”
Attorney Peter Lesser said some of his clients also reported receiving copies of his letters, while another client told him he never received a paper copy. He just saw it electronically.
Lesser said in his nearly 50 years as an attorney, he has never encountered the issue of someone other than his client opening his letters at the jail. He said he normally writes letters to his clients because he thought attorney-client privilege made that communication safer.
He said there are other ways to deal with security issues — jail officials could contact lawyers upon receiving the letters if they think they’re fraudulent or something is wrong with them.
“I understand their need for security, but I honestly would say that I don’t — I can’t think of any lawyers practicing law in Dallas, Texas, that are doing criminal law that would be sending a chemically laced letter into the jail on their letterhead,” Lesser said. “That’s just preposterous.”
“We’ve gotten to a point in this country that we just say ‘security’ and we just start throwing out constitutional rights,” he added.
‘We can hash this out in court’
Julie Lesser — who is married to Peter Lesser and is also a defense attorney — said none of her clients have told her that her letters were shredded after a copy was made. One client told her the jailers scanned her letter and then provided the client a copy.
“Well, where did the scan go?” she said. “I mean, that could have been forwarded straight to the DA’s office.”
She said the Supreme Court ruling cited by the sheriff’s department doesn’t address copies made of the correspondences, only that the original letter can be opened and not read. She said the attorneys could sue the sheriff’s department if officials continue to stonewall the group.
“I don’t care what the Texas Commission on Jail Standards says, my job is not to run the jail,” she said. “My job is to communicate with my client in a privileged and confidential environment. If you have to figure something out that allows me to do my job, then so be it. Otherwise we can hash this out in court.”
Staff writers Maggie Prosser and Josephine Peterson contributed to this report.