I don't understand why those emails aren't privileged, but it's sort of refreshing to see Fumo was stupid enough to keep sending the emails even after his lawyer said they emails weren't privileged. I'd hate to think that giving a government laptop to your butler was just a one off mental lapse.
Not having them privileged creates huge inefficiency in the system, as the article points out, but I'm only commenting because I want to be the first to note that one of the crime boss's lawyers is named Steve Zissou, which puts a quirky-twee spin on the whole thing.
Seems like total bullshit to me. Email is analogous to snail mail or a phone conversation, both of which are privileged. If there is concern about abuse of the system it would be easy enough to have the emails read by a third party not answerable to the prosecution.
So if I understand it correctly, at least on the Trulincs case, they basically require the inmates to use the system (if they're going to email), and by using the system they are forced to waive privilege. Is that right? Because that's some serious bullshit.
I wonder if they aren't partially trying to run up the costs for the defendants. Email is likely to be much more efficient than a phone call or visit in terms of using the time of the defense lawyer effectively.
1, 4: the rationale appears to be that your communications with your lawyer are never privileged if you know that a third party is privy to them (which is right as far as it goes), and the defendants click a box acknowledging that their emails will be monitored, so no privilege. What makes it bullshit is that there's an easy solution, segregate atty emails from the monitoring process (like they do for atty phone calls, which also wouldn't be privileged if they were openly monitored). I guess their claim is they can't afford to do that but this is clearly obnoxious ballbusting, if it were just an honest resource issue they could presumably adopt a policy of not using atty-client emails even if they're not technically privileged because of the monitoring.
Seems like a great example of the ossification of the Warren Court achievements - the state has to provide an attorney but it doesn't have to provide effective means of communication (curious whether there's a precedent to this effect).
What makes it bullshit is that there's an easy solution, segregate atty emails from the monitoring process (like they do for atty phone calls, which also wouldn't be privileged if they were openly monitored).
The article also says that they have a policy of not permitting any phone calls between attorneys and clients.
. I guess their claim is they can't afford to do that but this is clearly obnoxious ballbusting, if it were just an honest resource issue they could presumably adopt a policy of not using atty-client emails even if they're not technically privileged because of the monitoring.
How much budget does it take to add the attorney's email address to a no-monitor list?
The article also says that they have a policy of not permitting any phone calls between attorneys and clients.
At which point you surely have denial of due process.
8: I don't think that's right, unless I missed something. They discuss the problems one paralegal had in trying to arrange an unmonitored atty-client call, but also say that federal prisons have a policy of allowing such calls (with a link to the BOP policy).
I hadn't known the Feds were doing this. I don't really understand why exactly the same check the box logic wouldn't extend to phone calls or snail mail, except that the government didn't decide to take advantage of this theory there.
I think there'd be a problem if they didn't allow any privileged method for contacting your attorney, but other than that, the check-the-box logic works.
There's a gov't monitor on calls between GTMO prisoners and their lawyers. Supposedly insulated from the prosecution/intelligence apparati. They're no longer fondling the prisoners' balls as a condition of making phone calls, though.
6: I give it 6 months at the most before some enterprising attorney argues that the NSA revelations mean that some communication that was expected to be privileged on fact isn't.
What's lame is that prisoner-attorney communications are pretty obviously at the core of attorney-client communications you'd want to protect from disclosure, while on the other hand the privilege is routinely used to cover up civil malfeasance by large corporations. I guess I'd be OK with this if every bank and employer of more than 15 people also had to check a box saying that all emails, including attorney-client emails, might be monitored and are therefore nonprivileged.
What's lame is that prisoner-attorney communications are pretty obviously at the core of attorney-client communications you'd want to protect from disclosure, while on the other hand the privilege is routinely used to cover up civil malfeasance by large corporations. I guess I'd be OK with this if every bank and employer of more than 15 people also had to check a box saying that all emails, including attorney-client emails, might be monitored and are therefore nonprivileged.
17
Two days after this appeared, the government sought, and obtained, a stay of Judge Lamberth's order pending appeal. The appeal was argued in December, but has yet to be decided.
(More: http://www.lawfareblog.com/wp-content/uploads/2013/12/Hatim-Remes-Letter.pdf)
http://www.lawfareblog.com/wp-content/uploads/2013/12/Hatim-Remes-Letter.pdf
Works better without the paren.
And now they've ruled: go ahead, fondle away.