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Opening ‘legal mail’ does not violate right to counsel

Hon. Margaret J. Vergeront

Opening an envelope addressed to an inmate, labelled “legal mail,” did not violate the inmate’s Sixth Amendment right to counsel, or procedural due process rights, the Wisconsin Court of Appeals held on Feb. 13.

Lieutenant Clyde Maxwell, an officer at Fox Lake Correctional Institution, received anonymous notes stating that an inmate, Joseph Steffes, was dealing drugs in the institution. In response, he monitored a phone call between Steffes and his brother, Michael.

Steffes asked Michael whether he had received Steffes’s letter and Michael said he had; Steffes asked if the letter had been tampered with and Michael said no. Steffes then told Michael to “follow his instructions and send it back to me” and “[t]here’s a white envelope and some stamps.”

As a result of the conversation, Lieutenant Maxwell requested that Steffes’ incoming mail be monitored and inspected for contraband.

A few days later, Maxwell monitored a second phone call, this one from Steffes to his brother Danny. During the conversation, Steffes asked Danny if he had spoken with Michael about the letter that Steffes had sent to Michael, and Danny answered yes.

Steffes asked Danny to lend Michael money so that he could buy a “dime bag,” a $10 package of marijuana. Steffes told Danny to return the dime bag to the prison in the envelope that Steffes had sent Michael.

Just over a week later, Maxwell monitored another phone call from Steffes to Danny. In this conversation, Steffes instructed Danny to purchase a dime bag for him.
Four days later, an envelope addressed to Steffes arrived. The envelope had a return address of “Milwaukee State Public Defender’s office, Milwaukee, Wisconsin” typewritten on a white piece of paper taped to the front of the envelope; there was no letterhead or seal on the return address. The words “legal papers” were handwritten with a magic marker on the front and back of the envelope. The envelope was not metered, but bore a stamp.

Maxwell opened the envelope outside Steffes’ presence, and found marijuana amid five to ten pages of papers. Maxwell testified that he did not know the contents of the papers.

As a result, Steffes was charged with solicitation to deliver marijuana to a prisoner, as a repeat offender. He moved to suppress the marijuana, arguing that opening the mail outside his presence violated Wis. Admin. Code DOC 309.04(3)(a), and therefore, violated his Sixth Amendment right to counsel and his Fourteenth Amendment right against the deprivation of liberty without due process of law.

Dodge County Circuit Court Judge Andrew P. Bissonnette denied the motion, and Steffes was convicted. He appealed, but the court of appeals affirmed in a decision by Judge Margaret J. Vergeront.

Sixth Amendment

What the court held

Case: State of Wisconsin v. Joseph Steffes, 02-1300.

Issue: Does it violate a prisoner’s Sixth Amendment right to counsel or procedural due process, where prison officials opened mail outside of his presence, although the return address stated it was from the Public Defender’s office, when the mail was not from an attorney and contained contraband?

Holding: No. For such an action to violate the Sixth Amendment, the mail must be from an attorney and relate to a pending criminal case; and prison regulations governing the opening of prisoners’ mail do not create a liberty interest protected by procedural due process.

Counsel: Daniel P. Ryan, La Crosse, for appellant; William F. Bedker, Juneau; Sarah K. Larson, Madison, for respondent.

The court first held that opening Steffes’ mail outside his presence did not violate the Sixth Amendment right to counsel.

The court engaged in a lengthy discussion of State ex rel. Peckham v. Krenke, 229 Wis.2d 778, 601 N.W.2d 287 (Ct.App.1999). In Peckham, an inmate addressed a letter to “Attorney-K Leslie,
” but the letter came back due to an insufficient address.

Prison staff opened the letter outside of Peckham’s presence, and discovered correspondence to a publishing company, seeking a refund for books she had never actually bought.

The court of appeals in Peckham affirmed that the evidence was properly admitted in a disciplinary hearing, because opening the envelope did not violate her constitutional rights. Examining cases from other jurisdictions, the court found that the cases which did find a violation had common facts: there was a pattern of opening and inspecting legal mail outside the inmate’s presence; and the mail opened and inspected actually was from the inmate’s attorney, a judge in a case involving the inmate, or something similar.

In Peckham’s case, however, there was no evidence of such a pattern or practice, and the communication was not between her and her attorney.

Steffes attempted to distinguish Peckham by arguing that his envelope did contain “legal mail.” There were no findings in the record, however, as to the contents of the papers included with the marijuana.

The court assumed, for purposes of its analysis, that the papers were legal documents, but nevertheless concluded there was no violation of the Sixth Amendment right to counsel, because there was no evidence that the documents related to an attorney’s representation of Steffes in a criminal matter.

The court reasoned, “The Sixth Amendment protects the attorney-client relationship from intrusion in a criminal matter. Wolff, 418 U.S. at 576. The need for an inmate to be able to communicate privately with his or her counsel is vital to the effective assistance of counsel. See Bach v. Illinois, 504 F.2d 1100, 1102 (7th Cir. 1974).

There are many documents that could be described as “legal mail” or “legal papers” that do not have any bearing on an inmate’s relationship with his or her counsel in a criminal setting. One example that comes readily to mind is a document relating to a court proceeding when an inmate is proceeding pro se. In order for the Sixth Amendment right to counsel to have an arguable application in this case, there must, as a threshold matter, be some evidence that the documents in the envelope were communications with Steffes’s attorney or somehow related to an attorney’s representation of Steffes in a criminal matter. However, there is no evidence in the record that the envelope contained any such documents.”


Wisconsin Court of Appeals

Related Article

Case Analysis

Due Process

The court further found there was no deprivation of liberty without due process of law, in violation of the Fifth Amendment procedural due process clause.

Although DOC 309.04 provides that prison officials cannot open mail from an attorney outside the prisoner’s presence, the court found there was no violation, because there was no evidence that the mail came from an attorney.

The court concluded, “it is not a significant hardship in relation to the ordinary incidents of prison life to have mail opened outside an inmate’s presence when the mail purports to be from an attorney but is not.”

Accordingly, the court affirmed.

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David Ziemer can be reached by email.

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