Case v. Andrews

• Decision Date: 01 December 1979
• Docket Number: No. 51356,51356
• Parties: Edward E. CASE, Petitioner, v. Daniel R. ANDREWS, Lyon County Sheriff, Respondent.
• Court: Kansas Supreme Court

Page 623

603 P.2d 623

226 Kan. 786

Edward E. CASE, Petitioner, v. Daniel R. ANDREWS, Lyon County Sheriff, Respondent.

No. 51356.

Supreme Court of Kansas.

Dec. 1, 1979.

Syllabus by the Court

1. The Sixth Amendment right to counsel includes the right to confidential attorney-client communications. The right to private and confidential communications is not absolute, however, and is subject to reasonable regulation.

2. Attorney-client communications in a jail setting should be afforded as much privacy as is reasonably possible under the circumstances.

Michael C. Helbert, of Guy & Helbert, Emporia, argued the cause and was on the brief for petitioner.

Jay W. Vander Velde, Lyon County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for respondent.

PRAGER, Justice:

This is an original action in habeas corpus brought pursuant to K.S.A. 60-1501. The petitioner, Edward E. Case, claims deprivation of due process in the denial of his Sixth Amendment right to confer privately with his counsel while being held for trial in the Lyon County jail at Emporia.

The facts in the case have been stipulated by the parties and are as follows: Petitioner is currently incarcerated in the Lyon County jail pending trial on a criminal complaint. Michael C. Helbert was appointed counsel for Case and conferred with his client in the jail. The room provided for attorney-client consultation is divided by a steel wall with a small glass window, which prohibits any physical contact with the petitioner. The prisoner's side of the conference room is 8'6 deep, 4'10 wide, and 9'10 high. The attorney's side is 8'6 deep, 6'6 wide, and 7'8 high. This room is visually monitored by a permanently-mounted camera at the rear of the attorney's end of the room. The camera is not wired for sound. The only alternative location for an attorney-client conference is the defendant's cell, which is equipped with a microphone capable of picking up and/or recording conversations.

On August 1, 1979, during a conference with petitioner, attorney Helbert placed his suit coat over the camera lens to insure a "confidential atmosphere." Deputy Sheriff Charles Schreck interrupted the conference to demand that the coat be removed. When Helbert declined to remove his coat Schreck consulted with Judge R. E. Miller who confirmed the sheriff's position. The coat was then removed, and this action filed requesting restraint of respondent's televising, photographing, filming, listening to, or recording attorney-client conversations.

Petitioner claims such visual surveillance of an attorney-client conference constitutes an illegal condition of detention. The issue before this court is whether the visual surveillance of the attorney-client conference was justified by some compelling state interest or whether it was an unreasonable interference which deprived the petitioner of his Sixth Amendment right to the effective assistance of counsel.

There are many cases dealing with the right to private communications between the prisoner-accused and his counsel. None are factually similar, so there is no easy disposition of the issue. Moreover, there are cases on both sides of the issue, many without sufficient factual statements to be helpful.

The Sixth Amendment right to the effective assistance of counsel is applicable to the states through the Fourteenth Amendment. E. g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Martinez Rodriguez v. Jimenez, 409 F.Supp. 582, 594 (D.Puerto Rico 1976). The right to counsel includes the right to confidential attorney-client communications. Adams v. Carlson, 488 F.2d 619, 631 (7th Cir. 1973); Krull v. United States, 240 F.2d 122, 126, Cert. denied 353 U.S. 915, 77 S.Ct. 764, 1 L.Ed.2d 668 (5th Cir. 1957). The right to private and confidential communications is not absolute, however, and is subject to reasonable regulation. Baker v. Beto, 349 F.Supp. 1263 (S.D.Tex.1972); Smith v. Peyton, 276 F.Supp. 275, 277 (W.D.Va.1967); Krull v. United States, 240 F.2d 122; Matter of Hughes v. Cashin, 184 Misc. 757, 54 N.Y.S.2d 437 (1945). Most courts have required some justification, generally security reasons, for any intrusion on the privacy of the attorney-client consultation, Adams v. Carlson, 488 F.2d at 632, and do not impose the "compelling state interest" standard of justification showing of harm or prejudice. See, E. g. Owens-El v. Robinson, 442 F.Supp. 1368 (W.D.Pa.1978) (Overcrowding of the attorney-client conference room was occasional rather than constant, and mere speculation that the crowded conditions might interfere with defense preparation held insufficient to warrant judicial interference); Krull v. United States, 240 F.2d at 126. (Although corrections officer was present during the attorney-client conference, there was no constitutional infringement as there was no showing that the information was overheard, passed on to the prosecutor, or that the defense was hampered or prejudiced.)

Petitioner relies mainly on Ahrens v. Thomas, 434 F.Supp. 873 (W.D.Mo.1977) where the lack of facilities for private consultation between client and attorney was held to deny the defendant his Sixth Amendment right of access to the courts. Petitioner also cites Owens-El v. Robinson, 442 F.Supp. 1368; Jones v. Wittenberg, 440 F.Supp. 60 (N.D. Ohio 1977) (Partition between prisoner and attorney ordered removed and soundproof doors ordered installed); Moore v. Janing, 427 F.Supp. 567 (D.Neb.1976); Goldsby v. Carnes, 365 F.Supp. 395 (W.D.Mo.1973) (Private attorney consultation rooms to be provided free of both audio and visual intrusion except one small look-through glass panel); Collins v. Schoonfield, 344 F.Supp. 257 (D.Md.1972) (City jail conditions which allowed attorney-client conversations to be overheard by jail personnel and other prisoners held to violate the constitutional right to counsel absent justification).

Respondent counters with cases allowing visual observation of attorney-client consultations in the prison setting. See, E. g., Baker v. Beto, 349 F.Supp. at 1271 (Observation of prisoner and visitor without attempt to listen is reasonable as "obviously necessary" for prison security). Morales v. Turman, 326 F.Supp. 677 (E.D.Tex.1971); People v. Del Rio, 25 Misc.2d 444, 207 N.Y.S.2d 186 (1960); Krull v. United States, 240 F.2d at 122; Matter of Hughes v. Cashin, 184 Misc. 757, 54 N.Y.S.2d 437 (Consultation room was 45' long, so it was possible for the prisoner and counsel to confer "out of earshot but under visual supervision"); Ellis v. State, 149 Tex.Cr.App. 583, 197 S.W.2d 351 (1949). See also Ray v. Rose, 392 F.Supp. 601 (W.D.Tenn.1975) (Stressing the prison's responsibility for prisoner safety and to prevent escape, the court okayed close circuit monitoring of the hallway and cell, the screening of letters, and the log of all visitors of the infamous James Earl Ray, especially since there was no showing of prejudice).

Other cases not cited by the parties more adequately explain the rationale behind the decisions. For example, in Adams v. Carlson, 488 F.2d at 624, prison authorities modified the attorney's visiting room when gunpowder from the "outside" was found in a prisoner's cell. The modification consisted of a soundproof, glass partition between the prisoner-client and his attorney. Communications were by telephone. Noting that the constitutional right of counsel includes the right of private consultation, the burden was placed on the prison authorities to show some threat to the order or security of the prison. The court noted that attorneys were officials of the court, and to justify an impairment of the private consultation, the prison authorities were required to present facts to support a reasonable suspicion that the Attorneys were involved in the contraband smuggling.

Stover v. Carlson, 413 F.Supp. 718 (D.Conn.1976) involved interference with attorney-prisoner communications through the mail rather than face-to-face. Prison...