Court fight brewing over jail access to defendants
June 17, 2013
A recent move by administrators at the Wayne Brown Correctional Facility to limit “contact” visits between inmates facing criminal charges and their defense counsel to rooms where they are separated by glass partitions has many of those criminal attorneys fuming.
In one case, defense attorney Greg Klein was refused a contact visit with a client who, he said, has an IQ of 64 and who was suicidal.
“This is just plain wrong,” Klein wrote in a letter sent to Nevada County Sheriff Keith Royal April 9.
“One of the most important roles for court-appointed counsel is to gain a level of trust with the client. This is very hard to do through a piece of glass with a telephone that doesn’t work. To you the jail is nothing more than a cost center, both as a source of revenue (federal prisoners) and expenses. Try and remember the inventory is human beings,”
“I can’t risk security because you need to give your client a hug.”
— Nevada County Sheriff’s Capt. Jeff Pettitt
The dispute over what constitutes a contact visit is the center of five separate motions to force the Sheriff’s Office to allow contact visits that have been filed in Nevada County Supreme Court.
Local criminal defense attorneys contend that in the years after the Wayne Brown Correctional Facility was built, they were allowed to meet with clients in interview rooms meant for law enforcement personnel.
“The correction staff at WBCF has always accommodated counsel by allowing contact visits between inmates and their attorneys,” wrote Stephen Munkelt, who currently is representing Jacob Siegfried, set to go to trial soon on multiple cases.
“In March 2013, a new policy to deny contact visits to counsel was implemented, essentially requiring all contact … to take place through a glass partition and with use of a phone handset.”
The attorneys contend the jail is violating a basic Sixth Amendment right, the right to counsel.
According to Munkelt’s motion in Siegfried’s case, an inmate “has a constitutional right to private contact visits with counsel” that can only be restricted due to legitimate and specific security concerns.
But the Sheriff’s Office and its jail staff contend that there are legitimate security issues — and that the slot at the base of the glass partition through which items can be passed back and forth meets the definition of contact.
“The problem is, there are occasions when, based on the circumstances and the severity of the conduct, we don’t want an inmate in a room with an attorney — it’s a safety issue,” said Sheriff Keith Royal. “The primary impact is safety and staffing.”
According to Royal, the jail has seen a significant increase in prisoners due to realignment, and at the same time, has seen a decrease in its budget.
“We ran out of locations that have provide security,” he said. “We said enough’s enough … The reality is, there is case law that shows that a contact visit only requires a pass-through window. We’re meeting the requirements of the law, that’s my opinion.”
Security issue or constitutional right?
Capt. Jeff Pettitt, who was in charge of the jail at the time the decision was made to restrict visits (that position currently is held by Capt. Paul Schmidt), said there is a balancing act the jail staff must consider when assessing security needs.
“There was a time when attorneys were coming back into booking and meeting clients in unsecured rooms, that were never outfitted for that intended purpose,” Pettitt said. “We had to change the way we operate … It all comes back to safety and security.”
Both Royal and Pettitt insisted that jail staff will review cases and take steps to try to accommodate reasonable requests.
But the defense attorneys say that is not the reality.
“Discretion is being exercised only to deny contact visits,” Munkelt told Superior Court Judge Tom Anderson during a May 13 hearing.
“It’s unfortunate,” Munkelt said after one hearing. “I believe this period of separation from clients … is negatively impacting those people and will negatively impact their cases.
“The longer this situation goes on, the more of these (cases) there will be. They are being deprived of a right. It’s very clear. Part of the Sixth Amendment right to counsel, to effective counsel, is the right to a contact visit.”
Munkelt said the contention by jail staff that the pass-through, or “mail slot,” constitutes contact is “pure sophistry.”
“They know what a contact visit is,” he said.
Allegations by the local attorneys that the rooms are not soundproof, and that the phones don’t work, were refuted by Pettitt during a tour he provided recently at the jail.
Pettitt said he paid for the soundproofing, of the type used in sound recording studios, at the attorneys’ request, and that he tested it personally to make sure conversations could not be heard outside the rooms.
He added that due to complaints, he had the phones tested, and they were fine.
Pettitt said that several of the rooms that were previously used are accessible to the booking area, which he called “the most volatile area of the whole jail, where everyone mixes before being classified and segregated.
“It’s just bad business” to allow visits in those unsecured rooms, he said.
“I can’t risk security because you need to give your client a hug.”
Nevada County Public Defender Don Lown — whose deputies have two of the five cases in which motions to compel contacts visits have been filed — surmised during a recent interview that Royal, a past president of the statewide Sheriff’s Association, is looking at Nevada County as a test case he can win to benefit jails statewide.
“I don’t think it’s about safety,” Lown said. “They’re doing it because of manpower issues, but they’re not following the law.”
Lown called the soundproofing a “paltry effort” at protecting confidentiality, adding, “It’s simply not acceptable … It’s just so important just to be able to reach out and put your hand on their shoulder.”
Both Lown and Bill Walker, who also has filed a motion on behalf of a client, argued there were relatively minor steps the jail could have taken to ensure safety.
None of the defense attorneys interviewed could recall an instance in which an inmate had assaulted an attorney during a contact visit.
Walker said it was an equity issue, arguing that if law enforcement personnel can conduct face-to-face interviews with suspects, then their defense counsel is entitled to that as well.
“They’re going to have to change the policy,” Walker said, adding the restriction interferes with the client-attorney relationship and impedes due process. “This is not Guantanamo, it’s California.”
No progress in talks between defense attorneys and county
An in-chambers conference in late May between the defense attorneys, county counsel — which is representing the Sheriff’s Office — and Anderson resulted only in an agreement to discuss possible compromises with the Sheriff’s Office.
On June 10, however, Assistant County Counsel Marcos Kropf indicated there was no compromise on the horizon.
“It’s our position there is no right to barrier-free contact visits, and that this is not within the court’s jurisdiction,” Kropf said.
Kropf has said that the county’s position is that the courts cannot dictate how the Sheriff’s Office operates the jail.
“I simply don’t understand the People’s position,” said Judge Ersel Edwards, sitting in for Anderson, calling the restriction a “radical deviation” from past practice.
“You are asking to change a time-honored tradition in this court .. and imposing a blanket prohibition on contact. The judges feel it’s extremely important there is direct contact between counsel and clients.”
All parties agreed they needed to move forward in the hearing process, and the defense attorneys currently with motions pending to compel contact visits indicated they likely would present evidence at that hearing.
The hearing was set for 9 a.m. July 23.
“I see this going to the Third District Court of Appeals,” Edwards said.
“But I’m just a little trial judge.”
To contact Staff Writer Liz Kellar, e-mail firstname.lastname@example.org or call 530-477-4229.
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