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Right to Counsel Case Analysis

If one were to read solely the body of this case, without looking at the footnotes, the case would appear a significant contraction of prisoners’ constitutional rights.

The lengthy paragraph quoted above, discussing the Sixth Amendment, suggests that prisoners have no constitutional rights to be present when their legal mail is opened, unless it is from an attorney representing them in a criminal matter.

The paragraph suggests that any other legal mail, such as that from an attorney in a civil matter, or from a court, is not constitutionally protected. However, in a series of footnotes, the court makes clear that its holding is not nearly that broad.

In footnote 6, for example, the court notes that, in the U.S. Supreme Court decision in Wolff v. McDonnell, 418 u.S. 539 (1974), the Supreme Court assumed that a prisoner had a constitutional right to be present when mail from an attorney was opened, but did not decide the source of that right – the First Amendment, the Sixth Amendment right to counsel; or the right of access to the courts guaranteed by the due process clause of the Fourteenth Amendment.

In footnote 7, the court observed, "in Peckham, we did not distinguish between the Sixth Amendment right to counsel and the Fourteenth Amendment due process right of access to the courts. Since Steffes does not present an argument based on the Fourteenth Amendment due process right of access to the courts, we address only the Sixth Amendment right to counsel."

Finally, in footnote 9, the court suggested that incoming mail could be protected by the right of access to the courts, even if it is not from an attorney, but consists of other legal documents.

While none of these footnotes expressly recognizes that all prisoners have the right to have mail from any attorney or any legal documents opened in their presence, regardless of the nature of the legal issue, they strongly suggest that they do, as part of the Fourteenth Amendment right of access to the courts.

It should further be noted that the court’s quotation from Bach v. Illinois, 504 F.2d 1100 (7th Cir. 1994), "The need for an inmate to be able to communicate privately with his or her counsel is vital the effective assistance of counsel …" omits the expression, "and access to the courts," which is found in Bach immediately after the cited words.

In this case, even if Steffes had properly pleaded his motion to suppress based on access to the courts, rather than the Sixth Amendment, however, he likely still would not have prevailed.

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Wisconsin Court of Appeals

Related Article

Opening ‘legal mail’ does not
violate right to counsel

In more than just a bit of understatement, the court stated in footnote 11, "It is arguable that an envelope with a taped on, typed return address of the State Public Defender’s office that does not contain a street address is not ‘clearly identifiable as being from … an attorney."

Besides the suspicious return address, a stamp was used instead of meter postage, and "legal mail" was written in magic marker, instead of a rubberstamp "attorney-client" notation. In short, the prison authorities had more than good reason to believe the envelope was not from an attorney, much less "clearly identifiable" as being from one.

Furthermore, it can be argued that, even if officials open an article of mail outside the presence of a prisoner that clearly does appear to be from an attorney, but turns out to not be so, the evidence still need not be suppressed.

As the court of appeals observed in Peckham, "It is ironic that Peckham appears to be using the institution’s mail rules as a means to preclude an examination of her mail (i.e., by addressing the envelope purportedly to an attorney) in an attempt to further an unlawful end, and, when her scheme is uncovered, she attempts to use the same rules to preclude any discipline for her misconduct. This is an a
bsurd result which is avoided by virtue of the above analysis."

From this statement, it could be argued that the court would never countenance use of the exclusionary rule as a remedy for a constitutional violation arising from a prisoner’s own manipulation.

– David Ziemer

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David Ziemer can be reached by email.

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