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The Right To Self-Incriminate

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Under “Everything I Learned About My Legal Rights I Learned From Watching ‘Law & Order’ And Its Myriad Off-Shoots,” millions of Americans can recite the mantra law enforcement officials robotically recite while they’re cuffing a perp: “You have the right to remain silent. You have the right to an attorney. Everything you say can and will be held against you in a court of law.”

“Everything you say can and will be held against you.” Bada-Boom! Pretty powerful words and not exactly an incentive to start getting all chatty, even with the “good” cop and if you’re innocent of all wrong-doings.

Implicit in this reading of rights is that once you retain an attorney, you both can blab all you want in private, and that conversation is “privileged,” i.e., it can’t be used as evidence against you.

After all, if “Miranda” added the phrase “Everything you say to your attorney can and will be held against you…” it would pretty much gut that whole “attorney-client privilege” thing. In fact, it would even turn your attorney into one of a prosecutor’s most effective tools in securing your conviction.

That’s why, in these procedurals, the cops employ all sorts of methods to trick the perp into confessing before he “lawyers up.” Then, as soon as the suspect utters the immortal phrase, “I want to see my lawyer,” one of the interrogating detectives throws up his hands in exasperation, walks out of the room, and grumbles to his boss behind the one-way mirror something along the lines of, “Geez, it was going so well. We almost had him. Now we gotta deal with his dirty lawyer and actually produce evidence and junk.”

All of which is a rather long intro to mentioning that The New York Times recently reported that federal prosecutors around the country are reading inmates’ email correspondence with their lawyers and using the contents to bolster their cases against them. Prosecutors in Brooklyn, the Times reported, are particularly fond of this tactic. While this would seem to be a cut-and-dry infringement upon attorney-client privilege, the “loophole” is that all prison email correspondences go through one sole system, Trulincs, and to use it, defendants have to read and agree to a provision that all their communications are monitored. This meant, a judge in a U.S. District Court in Atlanta ruled in 2012, that since the defendant gave his consent, he “had no reasonable expectation of privacy.”

In other words, to communicate with your lawyer from prison, you have to first waive your right to attorney-client privilege.

I suppose the attorney could have responded, “My client had no reasonable expectation his privacy would be violated because attorney-client privilege has existed in this country for centuries,” but the judge probably would’ve just warned him that another outburst like that and he’d be held in contempt.

Because it’s “grandfathered in” through legal precedent, prosecutors still recognize that phone calls and visits from one’s lawyer are private, in most cases. Also, an inmate could send his attorney a letter via “regular” mail, making the prison population the last remaining demographic to send personal letters through the post.

All of these “privileged” methods are incredibly inefficient, time-consuming, and/or difficult to arrange, and carry inherent disadvantages. The cases cited in the Times’ story involved embezzlement, Medicare fraud, and the importation of fake prescription drugs, the defense of which likely requires long strategy sessions on matters of interpretation, nuance, supporting players, ad infinitum. Email is by far the most logical method to employ, and the only reason to arbitrarily exclude it from a similar status is to regard that “privilege” as a “bulls*** obstacle to circumvent,” for the sake of obtaining more convictions.

What makes it even more pathetic is that prosecutors are defending the monitoring, not with some great constitutional principle, but with budget cuts. They once had a “filter team,” you see, to separate out prisoner – attorney emails from the monitored correspondences, but the “team” was axed due to financial restraints. And so are sacrosanct human rights sacrificed, not with a mighty battle over great moral issues, but with a red line through Section 47, subsection C, paragraph (iv) of some budget bill.

The Times’ story says that thus far, judges are ruling on a case-by-case basis, and there is no consensus on the maneuver. But, as the saying goes, if it walks like a duck and quacks like a duck, it’s a duck.

When it comes to violating attorney-client privilege through the monitoring of emails, federal prosecutors are “ducking.”

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