In the United States Court for the Western District of Pennsylvania
Civil Action No. 95-618
Mumia Abu-Jamal, plaintiff
vs.
James Price, et al. Defendants
Findings of Fact and order of Court on Defendant's's motion to alter or amend judgement
Pending before the Court is Defendants' Motion to Alter or Amend Judgement (Docket #94), requesting that the September 30, 1996 Order granting preliminary injunctive relief on the issue of legal mail be amended to deny injunctive relief based on the Opinion of the United States Supreme Court in Lewis v. Casey U.S. 116 S. Ct. 2174.133 L.Ed. 606 (1996). After careful consideration of the submissions of the parties, the court makes the following findings.
1. Following the interception, opening, and reading of Plaintiff's attorney-client mail, all communications between Plaintiff and his lawyer, even those marked "confidential/attorney-client" were conducted "with the expectation" that they would be "opened and reviewed". (September 5, 1995 Docket #50)
2. The reading of Plaintiff's attorney-client mail by state officials interfered entirely with counsel's ability to represent Plaintiff during his collateral appeal.
3. Plaintiff's counsel considered it important to file Plaintiff's Petition for Post-Conviction relief in the state court prior to the Governor's signing of a warrant of execution. Counsel failed in this effort, untimely filing the petition "two or three days" after the warrant was signed. Among a number of factors responsible for this delay was the unwillingness of counsel and of Plaintiff to communicate freely by mail after having been informed that legal mail had been opened by prison officials. September 6, 1995, HT at 37 (Docket #51).
Conclusions of Law
Per defendants' Motion to Alter or Amend Judgement
1. Lewis v. Casey U.S. 116 s. Ct. 2174 135 L.Ed. 2d 606 (1996) and its holding that a state prisoner cannot prevail in a claim for injunctive relief in an access to the courts case without showing actual injury, does not control the decision of this case. Lewis involved a challenge to the state's provision of resources and establishment of policies to assist prisoners in researching, filing and maintaining lawsuits. None of those questions are present here. Plaintiff's claim, rather, is that the state improperly intruded upon an existing attorney-client relationship by opening, reading, copying and retaining and circulating a copy of confidential communications between himself and his lawyers. The nature of the state's conduct here is so different from the state's conduct in Lewis that the rule in the latter simply does not apply. Moreover, the claim made by the Plaintiff in this case is not a "mere" access to the courts claim. The claim made here is one founded not only on the right to access to the courts but also upon plaintiff's right to maintain confidential communications with his attorney, a right that is founded upon the common law, upon the Sixth Amendment and upon the Fourteenth Amendment. In such circumstances there is no need for a plaintiff to prove more than an unjustified breach of that confidentiality. The Plaintiff has done that here.
2. In the alternative, if Lewis, does apply, the Plaintiff here has demonstrated the actual injury required by that case. Both Plaintiff and his counsel testified that their communications with one another were impeded by their knowledge that state officials had opened and read Plaintiff's legal mail. This impediment, In turn, delayed the filing of Plaintiff's collateral appeal of his conviction and sentence of death, so that the Post-Conviction Petition was not filed until after the warrant of execution had been filed.
Therefore, this 4th day of December, 1996, it is ordered that defendants Motion to Alter or Amend judgement (Docket #94) is denied.
BY THE COURT,
Donetta W. Ambrose
U.S. District Judge
Excerpts from Brief in Support of the Injunction Handed down by this court proscribing the opening, reading, copying, or distribution of the Plaintiff's legal mail" Jere Krakoff 11/4/96
"Sometime prior to August 17, 1994, the Commissioner's Office -- through its legal counsel -- directed Huntingdon officials to open letters between Jamal and Jamal's criminal defense counsel outside of Jamal's presence, to photocopy the mail, and to forward copies of the letters to attorney David Horwitz at the Department's Office of Chief Counsel Harrisburg. (Horwitz Tr. 52, 58-91, Oct. 21)
The order to photocopy Jamal's legal mail was issued in the context of an investigation undertaken by the Department of Corrections whose stated purpose was to determine whether Jamal had violated the Department's Business or Profession Rule; an administrative rule that prohibits inmates from engaging in business or professions. [re the profession of journalism]
Against that backdrop, a letter was sent by Jamal's lead counsel-- Leonard Weinglass -- to Jamal at the prison on August 16, 1994. The three page letter, with attachments, addressed highly confidential matters associated with legal efforts to overturn Jamal's conviction and death sentence. Among other things, it discussed strategies related to the issue of whether Jamal's trial counsel had been ineffective, contained a frank assessment of the merits of that possible claim, and detailed Weinglass' efforts to locate defense witnesses. It was accompanied by a list of the names and functions of Jamal's defense team, including principle attorneys, assisting and consulting attorneys, legal assistant, investigators, experts and technical assistants. (Ex. 3)
The letter had been typed on Leonard Weinglass' office stationary and enclosed in an envelope that bore Mr. Weinglass' business return address, his designation as an attorney, and two large and prominent handwritten notations that the contents of the envelope were "legal" and "confidential". (Ex. 3)
The Weinglass correspondence to Jamal arrived at the prison sometime after August 16, 1994. After its arrival, the envelope was slit open, the contents of the envelope were removed, and photocopies of the documents were made and sent to David Horwitz. (see Horwitz, Tr. 61, Oct. 12; Weinglass Tr. 85-91, Sept. 5)
Horwitz acknowledged at trial that the Weinglass documents did not materially advance the so-called investigation and admitted that he recognized major portions of the documents contained information about Jamal's criminal appeal efforts. (see Horwitz Tr. 64-66) Horwitz, nevertheless, retained the materials without redacting any portions of the contents. In addition, he kept the documents in an unlocked cabinet in his desk, took no measures to assure that the documents would not be seen or copied by others, and forwarded copies of the materials to Brian Gottlieb (who worked in the Governor's office), and to Cheryl Young (the Chief Counsel to the Commissioner). (Horwitz Tr. 66-70 Oct. 12.) Neither Horwitz nor anybody else associated with the Department confirmed whether or how Young disposed of the Weinglass documents when she left the employ of the Department several months later.
A week after the seizure and photocopying of attorney Leonard Weinglass' letter to Jamal, Jamal sent a letter to Mr. Weinglass informing him that the "State has opened and reviewed your letters/documents.....outside of my presence--There isn't even the pretense of client-lawyer confidentiality." [Ex. 5] Jamal's privileged letter to Weinglass was also slit open and photocopied. The copy was forwarded to the Department of Corrections and retained by Horwitz, despite the fact that, by Horwitz's own admission, it bore no relevance to the alleged investigation. [Horwitz Tr. 67, Oct. 12]
Nearly a year after the original opening, photocopying, retention and distribution of Jamal's legal mail, a second wave of seizures was authorized by the Commissioner's office on June 5, 1995. [Ex. 20] The authorization came three days after Jamal's death warrant was signed by the Governor, and two days after disciplinary charges were finally filed against Jamal for his alleged violation of the Business or Profession Rule. [Ex. 88-2, Ex. 92]
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