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Court of Appeal:
Messages in Envelope Addressed to Lawyer Not Privileged
Sixth District Says There Was No Showing That Contents, Intended for Third Parties, Were Protected
By a MetNews Staff Writer
The Sixth District Court of Appeal has held that messages scrawled in small letters on bits of paper and placed by a jail inmate, awaiting trial, in an envelope addressed to his lawyer are not protected by the attorney-client privilege where the defendant failed to establish that the communications are of a confidential nature, thus requiring that discovery be allowed the prosecution.
“The controlling question is whether a document is in fact a confidential communication to an attorney,” the opinion says, and that, it declares, “is governed by the nature of the document not merely its container.”
Acting Presiding Justice Adrienne Grover authored the opinion. It directs that a writ of mandate issue commanding the Santa Cruz County Superior Court to vacate its April 16, 2021 order that the documents, being held by the court, be released to petitioner’s lawyer.
Magistrate’s Ruling Challenged
That order was made by Judge Paul P. Burdick in response to a writ petition challenging an Oct. 8, 2020 order by Judge Syda K. Cogliati, sitting as a magistrate at defendant Jason Joel Cortez’s preliminary hearing, that the messages be turned over to the prosecution. Cogliati, a former research attorney for the Sixth District, ruled that the communications are not subject to the attorney-client privilege.
She examined the pieces of paper—discovered by a jail guard when checking outgoing mail for contraband—and determined that they appeared to be “kites.” Grover explained that “a kite is a clandestine note usually written on a small piece of paper in very small print and used by an inmate to communicate with another person either inside or outside of the jail.”
The justice quoted Cogliati as saying at the hearing that the messages bear “the teeny tiny writing that we’ve all come to know as indicative of a gang related kite,” noted that they were addressed to persons other than Cortez’s lawyer, and were in the handwriting of different persons. Cogliati did not read the messages.
‘Threshold Burden’
Grover said that the “threshold burden” is on a party invoking the attorney-client privilege to show that the communication in issue is of a confidential nature, and wrote:
“Absent additional evidence presented by Cortez to demonstrate that (despite their characteristics suggesting otherwise) the kites were sent to his counsel for the purpose of seeking legal advice, the privilege claim fails.
“We therefore conclude the initial ruling from Judge Cogliati correctly determined the documents are not privileged because they are not a confidential communication to an attorney. Judge Burdick’s order setting aside that ruling incorrectly found the attorney-client privilege applied even in the absence of the required threshold showing.”
Jail’s Regulation
She went on to say:
“Even if the jail violated the regulation requiring legal mail to be opened in the inmate’s presence, the remedy would not automatically render everything inside the envelope—including communications originally intended for people other than an attorney—subject to the attorney-client privilege. The only question presented in this petition is whether the attorney-client privilege applies.”
Cortez is charged with murder, allegedly committed while in jail on a different matter, and perpetrated the crime for the benefit of a criminal street gang.
The case is People v. Superior Court (Cortez), 2023 S.O.S. 149.
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