Killer's Suit Over Legal Mail Breach Revived

     (CN) - The 9th Circuit on Monday revived a death-row inmate's claim that a prison guard illegally read his confidential letter to counsel.
     Facing the death penalty in Arizona, Scott Nordstrom alleges his Sixth Amendment right to counsel was violated in 2011 when a guard read a letter Nordstrom had written to his court-appointed lawyer and clearly marked as "legal mail."
     Nordstrom argued that the guard had gone beyond scanning the contents of the letter for references to contraband or safety issues.
     U.S. District Judge David Campbell dismissed Nordstrom's lawsuit for failure to state a valid claim, but a divided three-judge panel of the 9th Circuit reversed Monday and sent the case back to Phoenix for further action.
     Prison officials may "inspect" outgoing mail but cannot "read a confidential letter from an inmate to his lawyer," Judge Barry Silverman wrote for the majority.
     "This is because it is highly likely that a prisoner would not feel free to confide in his lawyer such things as incriminating or intimate personal information - as is his Sixth Amendment right to do - if he knows that the guards are reading his mail," Silverman added. "Reading legal mail - not merely inspecting or scanning it - is what Nordstrom alleges the Department of Corrections is doing, and it is what he seeks to enjoin. We hold today that his allegations, if true, state a Sixth Amendment violation."
     Prison officials argued that guards could legally read an inmate's missives to a lawyer in the presence of the inmate, but the appellate panel found that this only helped Nordstrom's allegations survive.
     "Nordstrom's allegations that prison officials read his legal mail, that they claim entitlement to do so, and that his right to private consultation with counsel has been chilled state a Sixth Amendment claim," Silverman wrote, adding that Nordstrom also had made a proper claim for injunctive relief related to this policy.
     Writing in dissent, Judge Jay Bybee argued that the majority had misinterpreted Supreme Court precedent, and that Nordstrom had failed to show he was injured in any way by the single event.
     "In my view, the Sixth Amendment does not prevent prison officials from reading legal letters with an eye toward discovering illegal conduct," Bybee wrote. "Furthermore, claims under the Sixth Amendment require proof of actual injury, and Nordstrom does not allege any."