Long-standing obstacles prevent lawyers from easily phoning clients in North Dakota prisons – InForum
FARGO — When William Hart appeared via Zoom in Cass County District Court to advise when he could potentially be released from jail, he told Judge Susan Bailey he was unable to connect with his attorney , Patrick O’Day.
Hart, who was sentenced to life in prison with the possibility of parole for shooting and injuring a Fargo lawyer in 1996 at a local YMCA, wrote in a letter to court that he repeatedly called O’Day and wrote several letters to the lawyer. but got no response. He said he wanted to fire O’Day and run again.
O’Day said at the June 13 hearing that it was nearly impossible to reach the clients in jail. When the judge asked guards at North Dakota State Penitentiary in Bismarck to set up a phone call between O’Day and Hart outside of court so they could discuss the case privately, officers said they couldn’t do it on short notice.
Lawyers‘ difficulty contacting clients in prison by phone is not a new problem in North Dakota, said Monty Mertz, who directs the public defender’s office in Fargo. Other lawyers with whom the Forum spoke also expressed their frustrations.
“That’s been a problem for as long as I can remember,” said Mertz, a public defender since 2008. “If we’re representing someone … we have to communicate with them.”
Prison residents can call their attorneys with DOCR-issued tablets from their cells. But passing an attorney’s call to a prison resident on short notice or giving them access to a confidential call during a Zoom hearing can be tricky, said Colby Braun, the facility’s director of operations for the North Dakota Department of Corrections and Rehabilitation.
Asked what happened in Hart’s case, Braun said he preferred to talk about the issue generally, not specific cases. O’Day did not respond to phone messages left by The Forum.
Braun acknowledged that DOCR could work to improve access to attorneys and said the department is open to working with attorneys to find solutions. “We want to solve this problem,” he said.
What’s at stake is a client’s due process, said Bismarck’s criminal defense attorney Robert Quick. People in prison have rights like everyone else, he said.
“Communication is the absolute essential key to proper representation,” he said. “You can’t properly represent someone if you can’t communicate with them.”
Mertz’s office focuses on criminal trials, so he doesn’t often represent people who are in prison.
His office may continue to represent a client on appeal or in post-conviction matters. It can also work for a client who has been sentenced to prison for another case but still has an open case, he added.
Mertz recalled a time when the prison usually cooperated to reach its clients on the phone if they set up an appointment. A case manager would arrange for the client to speak with a lawyer on the phone, he said.
Mertz said that changed at some point. He said he was told the prison did not want case managers to be in the “uncomfortable position” of eavesdropping on confidential conversations.
The U.S. Constitution says citizens have the right to an attorney, but it doesn’t specify what methods of communication a client should be allowed to use, said Bismarck criminal defense attorney Justin Vinje.
“As part of this right to a lawyer, what right of access to a lawyer does this person have?” Vinje asked. “I don’t know if there’s a law that says exactly how easy it should be for a person in jail to call their lawyer.”
The law gives prisons the power to decide the conditions of detention, said Mark Friese, criminal defense attorney at Fargo. This includes access to a lawyer during hearings.
“The (DOCR) has done a very good job of providing space for private counsel consultation at its facilities, but apparently not so much at electronically recorded hearings,” he said.
Prison staff will alert prison residents to call their attorneys if staff are contacted by attorneys, Braun said. Emergency calls are more difficult, he says.
“It’s not like in the movies where you see them in their cells all the time,” he said, noting that residents of DOCR may work or participate in programs or recreational activities.
Some prisons are better than others at arranging appeals, but it takes planning, said Kiara Kraus-Parr, a Grand Forks attorney who specializes in criminal defense and appellate cases in the Dakota Supreme Court. North. Quick, who was a full-time public defender before opening his practice in 2013, agreed.
“It all depends on the setup,” Quick said. “Some installations are really great and they are easy. It’s easy to get in touch with your customers. There are others that have different types of protocols or guidelines.
Prisons, which typically hold people awaiting trial or who have been sentenced to less than a year behind bars, have been “incredibly accommodating”, he said.
Some prisons only allow access through a paid phone service set up by a third-party provider if an attorney wants to call clients, Kraus-Parr said.
“If the lawyer or his office does not accept the fee or does not have an account with the third-party provider, it is difficult, if not impossible, to have a telephone conversation with the client,” she said. . “The incarcerated person will occasionally call collect, but not all offices will accept charges or are set up to do so from that particular facility.”
DOCR residents are allowed to use tablets as phones, Braun said. The reason behind using third-party providers is to ensure that prisons do not monitor confidential conversations, he said.
The prison had to set up secure rooms for residents who had hearings via Zoom during the coronavirus pandemic, Braun said. That means keeping residents away from their cells and tablets, he noted.
Before the pandemic, there were only several hearings a month for which the prison had to connect residents to video conferences, Braun said. Now there are several hearings a week, he said.
To make a separate call during a hearing, a guard would have to take the resident out of the secure room, escort them to their cell which may not be nearby, and put them on their tablet, Braun said.
“I don’t know what the solution is, or how to get around this,” Braun said.
Mertz called the phone service predatory, noting that customers or their families usually have to pay to make calls. These calls can cost several dollars per minute.
“It’s ridiculously expensive,” he said.
Clients in jail who can’t afford lawyers probably can’t afford those calls, Quick said. If their lawyer does not accept collect calls, it makes the situation difficult, he added.
Mertz discussed buying phone cards for clients, but the state Commission on Legal Advice for the Indigent, which oversees his office, advised against the move because clients could use the cards to call anyone , did he declare.
Prison residents and their attorneys can communicate by mail, Braun said. However, some issues can have delays, and those conversations can’t wait for the time it takes to deliver the letters, Mertz noted.
Jails are more accommodating for in-person visits, but having an attorney ride across the state for a 10-minute chat is ineffective, Mertz said. The state should cover his travel costs.
No right to appear for civil cases
It’s not just criminal cases that are of concern. Clients in jail are barred from appearing for civil matters, such as child custody or post-conviction hearings, Kraus-Parr said.
“I do a lot of juvenile labor,” said Kyle Weinberger, an attorney in Mandan, North Dakota. “I had extreme difficulty trying to coordinate the schedule (of a prison) so that they could bring people and even answers such that they did not believe they had to attend the hearing. They seem to pass judgment on many of them.
Weinberger said he understands the prison system may have staffing issues. He’s had good luck leaving messages asking for a call back from his customers. He said coordinating in-person meetings was “extremely difficult”.
Obstacles delay the civil legal process and make it difficult for a client to have their voice heard, he said.
Parents should have the right to appear in court when it comes to matters concerning their children, Weinberger said. When the parents are in jail, they can’t do it without the help of the DOCR.
“The hardest part is, from my perspective, there aren’t many more important issues than in court proceedings involving children,” he said.
Quick said he didn’t want to speak ill of all correctional facilities since some are helpful, but not being able to communicate with clients is unacceptable.
“It’s another hurdle towards an already difficult situation,” Quick said.