You Only Think You've Got Rights - Part 7
by Edgar J. Steele
As we have seen so far, the US Marshals Service (USMS) secretly violated my 6th-Amendment right to confidential communications with attorneys in every way possible: telephone, letter and personal conferences. The USMS even gave letter copies and sound recordings to the federal prosecutor for use against me right from the very beginning. Then, Judge Winmill gave them an illegal pass when we discovered they had been recording my phone calls to lawyers.
After Attorney Wes Hoyt filed a Substitution of Attorney, whereby he took over my case after I was wrongfully convicted, the judge pretended that Mr. Hoyt had filed a motion, thus requiring the judge’s approval, and scheduled a hearing. Recall that we talked of that July 6, 2011, hearing in Part III of this series, where we learned that the US Marshals Service, with the judge’s blessing, believed it legal to record my conversations with all attorneys not “of-record” and give these recordings to the federal prosecutors of my case. At that hearing, Judge Winmill also revealed his wrongful belief that he had the right to decide just who could be my attorney. Then, the judge went even further and ruled that he had to approve in advance any and all “confidential” communications I wished to have with any attorney, excepting only my new “Attorney of Record” (Wes Hoyt).
Don’t be misled by the judge’s verbiage about being concerned that a lawyer is not “licensed in the State of Idaho or perhaps Washington.” Remember that this is federal court. All legitimate American lawyers are allowed to practice before all federal courts. Besides, even in state court criminal proceedings, a defendant still has a 6th-Amendment right to consult confidentially with out-of-state attorneys.
Here’s the key statement made by the judge: “If there is a concern by Mr. Steele, then I think he can presumably communicate directly with the court, submitting something in ex parte fashion…” Ok, I do have a concern: I have to file an appeal soon, yet I am not allowed to talk confidentially with any appellate lawyer! So, per his in-court ruling, I wrote to Judge Winmill, “in ex parte fashion,” asking for permission to call two appellate attorneys in confidence. Enclosed is a copy of that 9-page, handwritten letter, in which I also asked the judge a few questions about this new (un-constitutional) rule of his.
The judge never did answer my letter. Guess he isn’t going to, since he since has issued an ex parte order, specifying that, I can’t “communicate directly with the court,” after all. Instead, in order to interview and speak confidentially with appellate attorneys, I must file a formal motion with the court and, then, only through my official, judge-endorsed “Attorney of Record.” I have asked Mr. Hoyt to do that. Meanwhile, the clock is ticking on my appeal, I still am languishing in jail and I am judicially prohibited from confidentially contacting any lawyer other than Wes Hoyt, who literally cannot handle my appeal. Now what am I supposed to do, judge?
My 9-page letter to Judge Winmill follows.
Latah County Jail
Moscow, ID 83843
July 14, 2011
Hon. B. Lynn Winmill, Judge
US District Court for Idaho
RE: US v. Steele, Case No. 2110-CC-148-BLW
Dear Judge Winmill:
In accordance with your order during last week’s hearing, I write you to request permission to contact (confidentially) two lawyers who are not my attorney of record at present:
[Names of attorneys redacted]
If I have trouble getting these two lawyers’ phone numbers, how do I confidentially secure them?
This rule of yours, restricting my confidential communications to only my “attorney of record,” is new to me and raises a great many questions as to how I am to observe it:
For example, I have been forbidden confidential access, even to my previous attorney of record, “Robert McAllister, through a phone number he gave me that is answered in the name of a furniture store (warehouse). How do I use such numbers to confidentially call my “attorney of record?”
Must I secure your permission each and every time I wish to confidentially contact an attorney who is not my “attorney of record?” That is, the same attorney, again and again?
Must I secure your permission to send confidential “legal mail” to attorneys not “of record?”
How does an attorney not “of record” contact me confidentially? Must he first secure you permission, too?
You specified in court that I must contact you, judge, which is why I write to you today (though I am having difficulty getting your phone number or address).
This, of course, constitutes an ex parte communication with the court, which I thought was frowned upon, if not actually illegal.
Should I contact you through someone else? If so, then who?
Should I be contacting you only through my attorney of record? If so, how do I keep confidential from him the fact of my communicating with other lawyers?
How do I call any attorney, even my attorney of record, if I am short of funds? Calls here at Latah County Jail cost me $0.50 per minute, which mounts up quickly.
If I am not to contact you ex parte, how do I seek you permission to confidentially contact an attorney not “of record” and keep that fact from the prosecution, not to mention the rest of the world?
I have been so distressed by how much of this case against me has been conducted in secret (closed hearings, sealed filings, all those trial sidebars that I was forbidden by you from attending, and so on). Even so, some documents have disappeared from the court record and I see that the trial transcript has been altered in places. I am not suggesting that you would be a party to such things, judge (except denial of my access to sidebar conferences, of course), but I truly am disturbed by how both the facts of my prosecution have been hidden and the documentation of how it was conducted now seem to be disappearing. How can I possibly organize an effective appeal? Even so, I would like to have some confidentiality for my attorney contacts.
After the way I was deceived by Spokane and Bonner County jail deputies, I simply do not trust any jail’s personnel to honor my attorney-client confidentiality, not to mention the US Attorney’s office and the US Marshals Service. How do I keep them from knowing about such contacts, let alone prevent their secretly listening, despite written jail policies and specific assurances to the contrary?
Spokane County Jail forbade me from contacting any attorney, except via the inmates' telephones. Because inmates in line and on either side of me could hear what is said, how do I keep even “attorney of record” calls confidential?
Spokane County Jail opened my marked legal mail, copied it and gave copies to the US Attorney (just my letters to attorneys not “of record,” I think, though I cannot be sure). In order to comply with your new, more liberal rule, how do I designate such attorneys to the jail so that I do not have that intrusion continue, yet still comply with your rule?
Is this letter going to be opened and read by the US Attorney’s office, since you are not my “attorney of record?”
It is too late for me to talk confidentially with other lawyers before the deadline to file post-trial motions. Is there some form of expedited request/approval for me to speak confidentially with attorneys not “of record?”
I had a hard enough time securing McAllister and, now, Hoyt to sign on as my attorneys of record. McAllister absolutely committed legal malpractice leading to my conviction. I must file a claim with his E & O insurance to finance my appeal, since all my funds (and then some) were expended upon McAllister’s representation. Once word of that claim gets out, no lawyer in America will be willing to come near me. How do I avoid that taint from attaching to me?
Speaking of taints. I was absolutely doomed to conviction by your ruling that I had waived my right to confidentiality in my calls and letters, previously, to attorneys “not of record.” If I do manage to secure a new trial on appeal and if I somehow can find a way to pay for it and if I find a good lawyer to handle my appeal, how do I remove that taint from the US Attorney’s files or, for that matter, from the minds of the prosecutors or, even, from your mind? This worries me greatly, Judge.
Finally, why do the USMS policies forbidding confidentiality in my communications with attorneys not “of record” trump the federal rules and bar ethics rules, Judge, as you so clearly intimated by your remarks during last week’s hearing?
Judge, I do not mean to be contradictory, impertinent or, even, disagreeable with you. The stakes (the rest of my natural life) are too high for me to risk that sort of behavior. However, I am in a fight, literally, for my life and now, with four unjust convictions, my back truly is against the wall.
I have been held in jail, essentially incommunicado, for over a year, therefore prevented from any meaningful defense of myself while I have had two truly horrible and incompetent “do nothing” attorneys of record. Now my money is gone and I wonder how I can pay for the motions or appeal, let alone a new trial. I feel like a drowning man, going down for the third time. Please help me! All I have been asking for is a level playing field, not the stacked deck I have been facing. Just simple fairness, judge. Why do I not seem to deserve even fundamental fairness?
By the way, every time I have been taken to Kootenai County Jail for holding in relation to hearings before you, I am treated in truly horrible fashion by some of the meanest and rudest county deputies I ever have seen. I am held in a holding cell in booking with no privacy and no shower and forbidden anything to read. Not even the bible I regularly ask for. I must sit there on a concrete bench or a thin mattress on the floor, all day and all night with no rec time, nothing to read and with the temperature so low that I seem to shiver all the time. Do not even the Geneva Accords (to which the US is a signatory) forbid such treatment? Does not the US Constitution forbid “cruel & unusual punishment,” Judge?
Detention is not supposed to be punishment. I have spent a year being punished illegally. I really can’t take it anymore. Please, Judge, Help me!
/S/ Edgar J. Steele