For the fourth year in a row, the Appellate Clinic at the University of St. Thomas law school has won a civil rights appeal on behalf of a prisoner in the U.S. Court of Appeals for the Ninth Circuit. On Thursday, the Ninth Circuit ruled in favor of an Arizona death row inmate’s claim that prison officials may not read or skim legal mail between prisoners and their counsel.
In the precedential opinion of Nordstrom v. Ryan, the court held that the policy of the Arizona Department of Corrections to engage in a “page-by-page content review of inmates’ confidential outgoing legal mail” violated the prisoner’s free speech right under the First Amendment and the right to effective assistance of counsel under the Sixth Amendment of the U.S. Constitution. Repeating its statement in an earlier appeal that a criminal defendant’s right to confidential communication with an attorney is “nearly sacrosanct,” the Ninth Circuit said that the prison’s practice of “scanning” letters and “reading some words” on each page went beyond what is permitted to inspect for contraband and security threats.
The appeal was briefed by third-year law students Bridget Duffus and Katherine Koehler, both 2017 graduates, under the supervision of Professor Gregory Sisk, who argued the appeal in San Francisco in January. This was the second successful appeal in the same case. In 2014, the Ninth Circuit reversed the initial dismissal of the prisoner’s lawsuit after briefing and argument by then-St. Thomas law students Joy Nissen Beitzel '14 and Michelle King '14.
The clinical team began working on the current case last summer, writing briefs and successfully convincing three public interest organizations to file amicus briefs on their behalf – including the Yale Law School Ethics Bureau, the Equal Justice Initiative and the New York County Lawyers Association together with the National Association of Criminal Defense Lawyers.
Scott Nordstrom, a Florence, AZ, based inmate, had always insisted on his innocence against charges of homicide during two robberies in Tucson, when he discovered that a prison guard was reading his handwritten letter to his lawyer for a criminal appeal. Nordstrom had filed a civil suit challenging the policy of the prison to review the contents of legal mail, but lost in district court, where he represented himself. When he appealed that ruling to the Ninth Circuit, Sisk picked up his case in 2013 and has now represented him through two appeals.
The Appellate Clinic is a year-long course that charges students to study written and oral advocacy, appellate courts, appellate jurisdiction, and the rules of appellate procedure. Clinical students represent a client pro bono under faculty supervision, briefing and arguing appellate cases on their behalf.