“I think there was one vote that I would change, and that one was the one upholding the Texas capital punishment statute. We did not forsee how it would be interpreted. I think that was an incorrect decision.”
–SCOTUS Justice John Paul Stevens, Interview with Nina Totenberg (NPR) 2010
“A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.”
–Texas Disciplinary Rules of Professional Conduct, Section .I. Rule 1.03(a).
Securus tablets were passed out here on Texas Death Row on Monday 12th of December 2022. As tends to be the case with any new significant change within prison, there has been an ongoing tangled web of confusion and misinformation. When the COVID crisis first erupted, all visits (legal, regular etc.) were completely suspended at all Texas prisons.
There were (at least) several instances where attorneys called a unit to schedule a legal visit and they were told about the suspension but staff did not inform them of the responsive new policy allowing regular and easily accessible attorney-client legal calls. There were many attorneys who had represented Death Row clients for years and years and previously only communicated with them via snail-mail and at in person legal visits. For months back then was all types of confusion that hindered attorney-client communication.
A similar dynamic is at play right now concerning the tablets. I'll be sending this out early Monday morning, 26th of December 2022. The past two weeks guys went out to legal calls, legal visits and regular visits with supporters who helped facilitate and engage in communication with lawyers, investigators and other legal support staff. There is already quite a bit of lack of clarity and misunderstanding. I think that relaying the following information may be helpful to some.
Lawyers and outside supporters never seem to anticipate encountering this inherent and ever-present fundamental truth about prison: staff will sometimes just say anything. At times this is done with devious intent and misinformation is given in a strategic manner in order to deter, dissuade, create obfuscatory confusion. At other times staff may relay incorrect information because they have been misinformed or simply do not know the answer to a question and they are just saying anything. Apparently, some combination of the above actions by staff have already been occurring, regarding misinformation about attorney-client communication via the tablets
IMPORTANT: They completely stopped giving us physical printout copies of Jpay emails on Friday 9th December 2022. This was the last day. They said that we would continue to receive Jpay printouts until the Securus messaging system on the tablets was fully implemented and completely operational. This didn't happen. It is now two weeks later and things have gotten much better but there are still problems.
Many attorneys and their support staff would Jpay email guys here with short basic info, specifically letting them know the date and time for a scheduled upcoming legal visit. Now, they will have to go to the www.securustech.net website and set up a Securus account and send E-messages back to anyone who sends them one first. People on L-II and L-III Disciplinary Status will not have access to a tablet and they will (supposedly) still get printed Jpay emails. There's no such thing as private, legally privileged emails and E-messages.
Legal calls, however, are different. Here are some relevant lines from the Jailhouse Lawyers Handbook (published by the Centre for Constitutional Rights and the National Lawyers Guild):
[P]rison officials cannot listen in on calls with your attorney. There is a process in your prison for requesting an unmonitored legal call and the prison still monitors them, courts may find that your expectation of privacy has been violated. Robinson V Gunja, 92 Fed.Appx.624 (10th Cir. 2004). However, if you don't follow your prison’s procedure for making a legal call, and simply use the regular phone, some courts will conclude that you waived your attorney client privilege by having the conversation after you were “told” of the monitoring by the sign or prison policies.
As of 10 days ago an official statement from the Director's office in Huntsville said that yes, Death Row inmates will have phone access on the tablets and this will happen soon. Staff have said that we will be able to have legal calls on the tablets, but have not given any type of straight answer to us and the inquiring attorneys on the policy and procedures for this. Is this intentional? I have no idea but below is the official Securus policy for attorney calls on tablets which is essentially Securus/TDCJ policy. (Apparently there is no separate TDCJ policy on this). Interestingly, staff have not told attorneys this but the policy clearly says, well, here it is:
Securus Unity and Secure View Terms and Conditions (I.O) Updated and Effective July, 6 2022
Pages 25-26
Attorney Calls
An attorney may register their number as a Private Number at an incarceration facility, which means that calls to that number from that facility will not be recorded and cannot be monitored. If calls occur before a number is designated by a facility as a Private Number, calls to that attorney’s number from an incarcerated person are recorded and may be monitored. Only incarceration facilities may designate which numbers are Private Numbers and are excluded from recording and monitoring. Each incarceration facility maintains its own list of Private Numbers. Having a number designated as a Private Number at one facility does not necessarily mean that number will be treated as a Private Number at other facilities, even if those facilities are under the same agency or Department of Corrections. If any attorney wants to designate their number as a Private Number for incarcerated clients in different facilities, they must register their number as Private as each of those incarcerated facilities. If a phone number is not designated as a Private Number, it will be recorded and may be monitored.
Others have had to register their name and telephone number with www.texasprisonphone.com to be approved for calls via tablets so attorneys may have to as well. I think that both attorneys and clients generally assume that prison staff can and will illegally listen in on or record privileged legal calls at any given time. There have been a number of court cases that have exposed this type of illegal activity. Nevertheless, it is important to have valid information to combat and nullify misinformation that can hinder legally mandated attorney-client communication and access to the fundamental constitutional right of courts and counsel. Hopefully the e-messaging system will be fixed and actually work within a few days and we will have tablet phone access within a week or so.
Staff have said that this will occur within that time frame, but sometimes… they just say anything. Outside attorney involvement may be necessary for this particular issue – and this is really needed for a long list of issues concerning the oppressive conditions here on Texas Death Row. Authoritarian and oppressive power never concedes willingly. It takes righteous action to bring about positive change.
IMPORTANT UPDATE: TDCJ now has all document of interest on the tablets that can be accessed by going to the FYI app and scrolling down to the Tablet Information section, then scrolling down to the Tablet Facts and Information English section. There is a page with that title (minus the “English”) with an official TDCJ seal on it but it is not a signed official policy. There is a Subscription and Rental Content section followed by a Subscription Services Information section. After this is a Legal Correspondence section which I will copy exactly as it is below:
Legal Correspondence
Legal correspondence will work on the tablets in the same manner as the Jpay system is handled.
E-messages are not considered confidential communication.
E-messages will be reviewed and monitored regardless of who is sending the message.
All communications, activity and data associated with use of Securus Tablets and services subject to monitoring, recording, interception and disclosure. You do not have any expectation of privacy with respect to this activity and data. When you use Securus services you consent to the recording of your communication and providing them to TDCJ and law enforcement. Use of the Securus Tablet and services managed by the TDCJ. Misuse may lead to suspension of services, confiscation of the tablet and administrative and disciplinary sanctions and/or legal action. Use of the tablet and all content, paid or otherwise, is a privilege that may be taken from you in accordance with established TDCJ rules and regulations. Inmates found liable for the destruction of a tablet can be responsible for paying $129. 99 fee to replace their tablet.
THIS DOCUMENT CONTAINS INFORMATION PROTECTED BY THE ATTORNEY CLIENT PRIVILEGE
That's all. It seems rather ambiguous and open to interpretation and it would be good for people on the outside – attorneys and other legal professionals – to get some clarification. I'm specifically thinking of the relevance of those lines I cited from the Jailhouse Lawyers Handbook. Those within this system whose actions are solely guided by nothing more than an oppressive and destructive compulsion towards obtaining personal power and control and all things, fear outside oversight and attorney involvement more than anything else.