Respondents Brief — Shaw v. Murphy

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—_—--- —

Supreme t mrt, Us

DEC [5 2000 FILED

No. 99-16 DEC 9S onan

In The CLERK

Supreme Court of the United States—

ROBERT SHAW, LARRY BEARLEY, MICHAEL

MAHONEY, MYRON BEESON, and RICHARD S. DAY,

Petitioners,

KEVIN MURPHY,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF OF RESPONDENT

Pror. JerFReEY T. Renz

Counsel of Record

Pror. CYNTHIA Forp

Criminal Defense Clinic

School of Law

University of Montana

Missoula, Montana 59812

(406) 243-4823

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

May state prison officials, consistent with the First

Amendment, punish an inmate for the contents of a letter

he writes to another inmate who has been charged with

assaulting a corrections officer, where-(a) the letter offers

information and advice relating to the defense of the

assault charge, (b) the prison has no rule that~forbids

prisoners from writing letters to one another, and (c) the

punishment is imposed because the information and

advice criticizes the corrections officer?

PARTIES

All parties are listed in the caption.

TABLE OF CONTENTS

Page

QUESTION PRESENTED................200eeeeeees i

TABLE OF AUTHORITIES .............-.000000e00: ii

CONSTITUTIONAL AND STATUTORY PROVI-

ELEN EPE STP PeT eee Te TT TTTTTTTTTTLT TTT Tee 1

STATEMENT OF THE CASE..............-0000005. 1

E, Statement Of Pacts......cccccccccccccccsvcces 1

Il. Proceedings Below .............6.20eeeeeeeee 9

SUMMARY OF THE ARGUMENT ................. 12

IEEE Sebdeesococccocesccesccccceccccccccces 16

I. THE PRISON HAD NO LEGITIMATE INTER-

EST IN CENSORING INFORMATION COM-

MUNICATED FOR USE IN A PENDING

CRIMINAL CASE.................0-eeeeeeee 16

A. Inmates Retain Various First Amendment

Rights Including the Right to Communi-

cate Information and Advice About a

Pending Criminal Proceeding ........... 16

B. The Prison Had No Legitimate Penologi-

cal Interest in Punishing Respondent's

Pe ccccccccccccccccccsccccccccccces 17

Il. THE PRISON’S PUNISHMENT OF MURPHY

WAS NOT REASONABLY RELATED TO THE

PENOLOGICAL INTERESTS IT ARTICU-

B. There is No Logical Connection Between

the Prison’s Punishment of Murphy and

the Interests it Asserts.................. 23

TABLE OF CONTENTS - Continued

Page

1. The Prison had no interest in security

and order in this case...............

2. The Prison did not demonstrate a con-

nection between Murphy’s punish-

ment and its interest in regulating

speech directed to its staff ..........

3. The Prison did not demonstrate a con-

nection between Murphy’s punish-

ment and its interest in ensuring the

integrity of its due process

REED covccoscoseonccouencceseeten

4. Because the Sixth Amendment and

due process rights of other prisoners

are implicated, any evidence the

Prison might proffer to demonstrate a

connection between its legitimate

interests and Murphy’s punishment

would have to be very probative....

If a Prison Punishes Content of Commu-

nications, Then Inmates Have No Other

Avenues by Which to Communicate Criti-

Oe Be i niénddecddbcnsuse cud

Accommodating the Right to Communi-

cate Advice and Information About a

Defense in a Criminal Case Has No

Legally Recognizable Impact Upon Staff,

Other Inmates, or Prison Resources .....

Ready Alternatives Satisfy the Prison’s

RED 0 ccccccncccccccccccecccecessases

IV.

TABLE OF CONTENTS - Continued

Page

PERMITTING PRISONS AND JAILS TO PUN-

ISH INMATES FOR STATEMENTS CRITICAL

OF THEIR STAFF AFFECTS OTHER PUBLIC

The Public’s Interests in Information

About its Jails and Prisons and in the

Legitimacy of Criminal Trials Outweighs

the Prison’s Interest in Suppressing State-

SE Be Ss EE bbkbeKkeedeesndnnese

An Accused’s Interest in Obtaining

Timely Exculpatory Facts Is Greater Now

than it Was When Brady Was Decided...

THIS CASE DOES NOT IMPLICATE THE

OTHER INTERESTS AND CONCERNS

“ARTICULATED BY PETITIONER AND THE

The Prison Conflates This As-Applied

Challenge With a Facial Challenge to Its

PRERTEOMS. «oc ccccccccccccccccccecceces

Many Matters to Which the Prison and Its

Amici Point Are Not at Issue............

1. The Prison may inspect and read

inmate-to-inmate mail ...............

2. The Prison may prohibit inmates from

holding the position of legal clerks

and may prohibit inmates from acting

as formal or informal writ-writers ...

3. The Prison may prohibit inmates from

conducting investigations............

TABLE OF CONTENTS - Continued

Page

4. The Prison may read inmate-to-inmate

mail regarding legal matters....... .. 40

5. A holding that the Prison may not

censor pieeaiien and advice does

not create a right to meet and counsel

with another inmate................. 40

a i 41

V. THE IMPOSITION OF DISCIPLINE AGAINST

INMATE LEGAL CLERKS FOR THE CON-

TENT OF THEIR ADVICE DEPRIVES

OTHERS OF ACCESS TO THE COURTS..... 41

A. Punishing Inmate Legal Clerks for the

Content of Their Advice Constitutes a

. Deprivation of the Recipient’s Right of

Access to the Courts.................... 41

B. Murphy Had Standing to Raise the Right

i a ae a id ae a 43

EE EE Ee TE 46

VI. THE PRISON AND THE AMICI INVITE THIS

COURT TO RULE ON THE RIGHT TO COR-

RESPOND REGARDING LEGAL MATTERS;

WERE THIS ISSUE PRESENT IT WOULD BE

RESOLVED IN FAVOR OF SUCH A RIGHT. 46

A. The Right to Correspond Has Not Been

Put at Issue by the Facts in this Case... 46

B. Turner Did Not Address the Application

of Rules Prohibiting Correspondence

Regarding Legal Matters................ 47

NED ecnncscendevenauséasscsedcccccenions 48

Vii

TABLE OF AUTHORITIES

Page

Cases

Adams v. James, 784 F.2d 1077 (CA 11 1986)......... 21

Bounds v. Smith, 430 U.S. 817 (1977)........... 2, 20, 41

Bradley v. Hall, 64 F.3d 1276 (CA 9 1995)............ 32

Brady v. Maryland, 373 U.S. 83 (1963)......... 18, 28, 36

Brooks v. Andolina, 826 F.2d 1266 (CA 3 1987) ....... 32

Brotherhood of Railroad Trainmen v. Virginia State

Bar, 377 U.S. 1 (1964). ... 2... cece cece eee e eee eeees 17

Buckley v. Valeo, 424 U.S. 1 (1976)............----00 16

Buise v. Hudkins, 584 F.2d 223 (CA 7 1978).......... 44

Cantwell v. Connecticut, 310 U.S. 296 (1940).......... 26

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) .... 26

City of Houston v. Hill, 482 U.S. 451 (1987) .......... 25

Cochran v. Kansas, 316 U.S. 255 (1942)...........44.. 20

Cruz v. Beto, 405 U.S. 319 (1972) ........--- eee eee eee 42

Edenfield v. Fane, 507 U.S. 761 (1993) ...........-.... 24

Edwards v. Balisok, 520 U.S. 641 (1997)............... 10

Ex parte Hull, 312 U.S. 546 (1941) .............0ee ees 20

First National Bank of Boston v. Bellotti, 435 U.S. 765

PIPED oc cccccccccccccccccccecsscuceseescesosescees 24

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) .... 19

Gibbs v. Hopkins, 10 F.3d 373 (CA 6 1993) ........... 43

Viii

TABLE OF AUTHORITIES

Page

Gilmore v. Lynch, 319 F. Supp. 105 (N.D. Cal. 1970) .... 42

Goff v. Dailey, 991 F.2d 1437 (CA 8 1993)............ 32

Heck v. Humphrey, 512 U.S. 477 (1994)............... 10

Houchins v. KQED, Inc., 438 U.S. 1 (1978) ........... 34

In re McNair, 189 Mont. 321, 615 P.2d 916 (1980) .... 36

In re Oliver, 333 U.S. 257 (1948)........... eeeneeend 35

In re Primus, 436 U.S. 412 (1978)................. 16, 17

Johnson v. Avery, 393 U.S. 483 (1969) ......... 39, 43, 46

Jones v. North Carolina Prisoners’ Union, Inc., 433

Se CY CI ot cnccnccnsdnsweadeaddecedcsencceus 40

Laird v. Tatum, 408 U.S. 1 (1972) ..............00085. 45

Leonard v. Nix, 55 F.3d 370 (CA 8 1995)............. 32

Lewis v. Casey, 518 U.S. 343 (1996) ....... 20, 41, 42, 45

Lewis v. City of New Orleans, 415 U.S. 130 (1974) .... 25

Loggins v. Delo, 999 F.2d 364 (CA 8 1993) ........... 32

McNamara v. Moody, 606 F.2d 621 (CA 5 1979)....... 32

Meachum v. Fano, 427 U.S. 215 (1976)................ 16

Mooney v. Holohan, 294 U.S. 103 (1935) ........... 18, 28

Murphy v. Shaw, 195 F.3d 1121 (CA 9 1999) ..10, 11, 31

NAACP v. Button, 371 U.S. 415 (1963)............... 17

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .... 24

TABLE OF AUTHORITIES

Page

Nolan v. Scafati, 430 F.2d 548 (CA 1 1970)........... 21

Pell v. Procunier, 417 U.S. 817 (1974) ............- 16, 34

Pointer v. Texas, 380 U.S. 400 (1965) ............0005- 18

Procunier v. Martinez, 416 U.S. 396 (1974)....18, 28, 41, 43

Pyle v. Kansas, 317 U.S. 213 (1942) ........00000e: 18, 28

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555

CRGGED ... ccccccccccccccccccccccsccceseceeccecees 35, 36

Rizzo v. Dawson, 778 F.2d 527 (CA 9 1985) .......... 11

Sandin v. Conner, 515 U.S. 472 (1995)..........+-. 10, 31

Saxbe v. Washington Post Co., 417 U.S. 843 (1974) .... 34

Singleton v. Wolff, 428 U.S. 106 (1976) ..........-. 44, 45

Smith v. Maschner, 899 F.2d 940 (CA 10 1990)........ 44

protinansnienicsineccnivaniwieniisiiie’

Taylor v. Illinois, 484 U.S. 400 (1988)..........--0+55. 18

Thornburgh v. Abbott, 490 U.S. 401 (1989) ....17, 18, 23, 30

Turner v. Safley, 482 U.S. 78 (1987) ..........5555 passim

United Transportation Union v. Michigan Bar, 401

U.S. S76 (1971)... ccccccccsccccccccccccccccceceees 24

Vaughn v. Trotter, 516 F. Supp. 886 (M.D. Tenn.

BID. ccccccccccccccccvesscccesccccccccccvccceees 45

Virginia State Board of Pharmacy v. Virginia Citizens

onsumer Council, 425 U.S. 748 (1976)............. 18

Younger v. Gilmore, 404 U.S. 15 (1971) .......-++++++: 42

Zemel v. Rusk, 381 U.S. 1 (1965). ..........0 cece eee 40

TABLE OF AUTHORITIES

Page

STATUTES AND RULES

et Rnb cksceedkdnedccdacncccdeenswenes 48

SD UBL. | TAGGED CIGD. oc cccccccccccccesccccss 37

28 U.S.C. § 2244(d)(1)(c) (1999). .........cccccccccees 37

See Cs 0 Se I nteecotccsccccccctcemime 36

ee a Oe I I bho ee dvcdceddkdsdeadadeneeas 36

ep ge ae ee ED $00 0knncescexetéckscincdes 37

28 U.S.C. § 2263(b)(3)(B) (1999) .................008, 37

Se Ws Oe Scab vedckdccdebadessdentdadancdscacs 10

Mont. Code Ann. § 45-5-202(2)(c) (1993).............. 2

Mont. Code Ann. § 46-18-502(1) (1993)............... 2

Mont. Code Ann. § 46-21-102(1) (1999).............. 36

Mont. R. Evid., Rule 404(a)(2).................00005- 28

Rule 104, Fed. R. Evid. .............ccccsecccccceces 36

Se Se I Sie inn ackdaccsdicccccddscwscsecte 28

Rules 404(a)(2), Mont. R. Evid................0...0005 2

§ 3, Uniform Post-conviction Procedure Act (1966) .... 36

MISCELLANEOUS

11A Uniform Laws Annotated 334 (1995)............ 36

VI J. Wigmore, Evidence § 1834 (J. Chadbourne

SA Ce ho endedscnnevecacsccedcesscdéonénceoecs 35

CONSTITUTIONAL AND STATUTORY PROVISIONS

The First Amendment to the United States Constitu-

tion provides:

“Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble; and to petition

the Government for a redress of grievances.”

The Fourteenth Amendment to the United States

Constitution provides, in relevant part:

“Section 1. . . . No State shall make or enforce any

law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due pro-

cess of law: nor deny to any person within its jurisdiction

the equal protection of the laws.”

STATEMENT OF THE CASE

I. Statement of Facts.

This case arose when the Petitioners (hereinafter “the

Prison”) punished a Montana State Prison inmate,

Respondent Kevin Murphy, after he wrote a letter to

another inmate, Pat Tracy. The letter contained informa-

tion relevant to Tracy’s defense to a criminal charge of

assault on a prison guard. He also offered Tracy advice

about the criminal charge. Murphy was punished because

he made comments that criticized the prison guard, even

though they were material to Tracy’s defense.

The State of Montana admits evidence of the charac-

ter of the alleged victim to support a claim of self

defense. See Rules 404(a)(2); 405, Mont. R. Evid. (party

may offer testimony about reputation of, and about speci-

fic instances of conduct by, alleged victim); State v. Shad-

well, 22 Mont. 559, 572, 57 Pac. 281, 286 (1899) (holding

evidence of prior threats and violent acts by deceased

relevant to prove self defense). In the case at bar, the State

of Montana charged Montana State Prison inmate, Pat

Tracy, with assault on a prison guard, Glen Galle, in 1994.

J.A. 84, ¥ 4.

Assault on a peace officer was and is a felony in

Montana. Mont. Code Ann. § 45-5-202(2)(c) (1993).

Because Tracy was serving a sentence for a prior felony,

he faced up to 100 years confinement under Montana’s

“two strikes” statute. Mont. Code Ann. § 46-18-502(1)

(1993); Tracy Aff., J.A. 84, | 12.

Montana State Prison is divided into Minimum,

High, and Maximum security “sides.” Following the

alleged assault, in accordance with Prison policy, the

Prison moved Tracy from the High Security side to seg-

regation in the Prison’s Maximum Security unit. J.A. 78,

{ 3.

Kevin Murphy was an inmate legal clerk on the High

Security side of Montana State Prison, where Tracy had

been housed. J.A. 78. Murphy had been appointed by the

Prison and trained under the Prison’s legal clerk pro-

gram. The Prison adopted that program to satisfy its

duties to provide means of access to the courts then

required by Bounds v. Smith, 430 U.S. 817 (1977). C.R. 38,

exhibit 4 at 1.

Initially, the Inmate Legal Clerk program provided

that the Prison Librarian would assign cases to inmate

legal clerks depending upon the clerk’s case load. C.R. 38,

Ex. 3. It is undisputed that, as the program evolved, the

process of providing assistance became less formal.

Sometimes legal clerks provided assistance on a first-

come, first-serve, walk-in basis. The librarian also

assigned legal clerks to inmates who sent written

requests (called “kites.”) At other times, inmate legal

clerks provided assistance in response to requests sent

directly to them. Murphy Aff. { 5, J.A. 87.

The same rules applied if a requesting inmate was

housed in the Prison’s Maximum Security unit. Murphy

Aff. { 3, J.A. 87. Although the Prison decided that, for

security reasons, High Security side legal clerks could no

longer visit the Maximum Security unit (Max), it is undis-

puted that High Security legal clerks were not forbidden

from providing assistance altogether and were still per-

mitted to correspond with Max inmates. Murphy Aff.,

{1 3-4, J.A. 87. Other inmates who were not legal clerks

were also permitted to correspond with Max inmates. J.A.

34, 36.

Tracy requested help from Murphy, who had pro-

vided Tracy with legal help on many occasions in the

past. J.A. 87, { 6. Tracy asked for Murphy’s help on his

case through several channels, including a request to the

Prison’s librarian. J.A. 84, { 7. The librarian, who was in

charge of the legal clerk program, told Tracy that High

Security inmates were no longer allowed to visit the

Maximum Security unit. Tracy Aff., { 10, J.A. 84. He

arranged for a Low Security side law clerk to see Tracy.

Id. That law clerk had a reputation for breaching confi-

dences and Tracy therefore refused to speak with him. Id.

Tracy’s requests and the charges against Tracy came

to Murphy’s attention. Murphy Aff. { 3, J.A. 78. Although

he was not permitted to visit Tracy, Murphy could look

into reports that officer Galle had made sexual advances

to inmates. Murphy Aff. { 8, J.A. 88. Murphy learned that

a number of inmates had circulated a petition complain-

ing of Galle’s wrongful conduct in other matters. Id.

According to the Prison’s policy and his job descrip-

tion, Murphy’s job was to “counsel with complaining

inmates,” to “define issues in matters to be addressed

through legal channels,” to instruct inmates in document

preparation and legal research, and to instruct inmates on

procedures in civil rights and post-conviction matters

“and other forms of asserting claims.” Inmate Legal Clerk

Program 1; Law Clerk Job Description 1, C.R. 38, Ex. 3.

The requirements for his position included “[b]asic

understanding of criminal and civil procedure,” the abil-

ity to perform research, experience in pleadings and

forms, an ability to communicate well and to maintain a

high level of professional confidentiality. Id.

Acting within the scope of those duties, on February

16, 1995, Murphy wrote to Tracy and summarized what

he had learned. Murphy Aff., { 9, J.A. 88, 50. Murphy

wrote,

Dear Pat:

How ya doing? Sorry I haven’t wrote before

now. I been busy fighting my charges.’ Finally

got everything taken care of. I can’t come up to

max anymore. [T]he lowside clerks go up there

now. [T]hat’s why I haven't called you out like I

used to. I do want to help you with your case

against Galle. It wasn’t your fault and I know he

provoked whatever happened! Don’t plead

guilty because we can get at least 100 witnesses

to testify Galle is an over zealous guard who has

a personal agenda to punish and harass inmates.

He has made homo-sexual advances towards

certain inmates and that can be brought up into

the record. There are petitions against him and I

have tried to get the Unit Manager to do some-

thing about what he does in Close II, but all that

happened is that I received two writeups from

him myseif as retaliation. So we must pursue

this out of the prison system. I am filing a suit

with everyone in Close I and II named against

him. So you can use that too!

Another point is that he grabbed you from

behind. You tell your lawyer to get a hold of me

on this. Don’t take a plea bargain unless it’s for

no more time.

I seen Damie for a little while when I was

out. I never came over to Butte much. Lenny is

living in lower D still and I don’t speak to him

much. His sister did something to Ted from

what I heard. I don’t know what. Well I will

1 Murphy had been out of prison for a short time. Murphy

Aff. ¥ 7, J.A. 88.

write again when I get this thing against Galle

finished.

Later. . .

Murph

J.A. 50.

The Prison’s Correspondence Policy (hereinafter the

Mail Policy) permitted inmate-to-inmate correspondence,

regardless of where the inmates were housed. Mahoney

Aff. { 14, J.A. 97. The Policy also permitted Prison offi-

cials to read those letters and its supervisory officers

regularly did so. Id., {¥ 14-16, J.A. 97. The Prison could

also read Privileged Correspondence (letters to attorneys,

judges, and other officials), “if there are reasonable

grounds to believe that the mail is being sent contrary to

this policy. .. . ” Mail Policy VII. A, J.A. 43. Murphy thus

knew that his letter would be read by prison officials

before being delivered to Tracy. Murphy Aff. { 10, J.A. 88.

He did not believe that Officer Galle would see his letter,

id., J.A. 88, and it appears that Galle did not see the letter.

Petitioner Robert Shaw, the Correctional Supervisor

in Murphy’s housing unit, read Murphy’s letter and

began disciplinary proceedings against him.

Tracy never learned of the information in Murphy’s

letter. He did not see the letter until it was brought to his

attention by Murphy’s attorneys nearly 18 months later.

Tracy Aff. { 11, J.A. 94. By then he had pled guilty to

felony assault in order to avoid being sentenced as a

persistent felony offender. Id., { 12, J.A. 84.

After reading Murphy’s letter, Shaw charged Murphy

with violating Prison Disciplinary Rule 009 (Insolence),

Rule 022 (Interference with Due Process Hearings), and

Rule 025 (Conduct which Disrupts or Interferes with the

Security or Orderly Operation of the Institution). J.A. 52,

54, 57. Murphy requested a hearing on all three charges.

The hearing officer, Petitioner Larry Bearley, concluded

that Murphy did not violate Rule 025 (Conduct Which

Disrupts or Interferes with the Security or Orderly Opera-

tion of the Institution), but did violate Rule 009 (Inso-

lence) and Rule 022 (Interference with Due Process

Hearings). Br. for Pet. 11; Pet. for Writ of Cert. 6. His

findings were based on the content of Murphy’s letter.

Insolence is defined in Montana State Prison Policy

No. 15-001, Rule 009, as “Words, actions or other behavior

which is intended to harass or cause alarm in an

employee.” The Policy includes examples that explain its

scope: “Cursing; abusive language, writing or gestures

directed to an employee.” J.A. 10.

Shaw’s Insolence charge against Murphy alleged:

While routinely monitoring Institutional mail, I

(CS Shaw) noticed statements in a letter from

Inmate Murphy to Inmate Tracy. In this letter,

Inmate Murphy accused CO Galle of being an

overzealous guard who punishes and harasses

inmates for a personal pleasure. Inmate Murphy

also accused CO Galle of making homo-sexual

advances towards inmates. Inmate Murphy

stated that CO Galle retaliated against Murphy

by writing him up on two rule infractions.

J.A. 52.

i“ At Murphy’s hearing, hearing officer Bearley con-

cluded, with respect to the Insolence charge, “evidence

states c/o Galle retaliated against inmate Murphy by

issuing Inmate Murphy a class II infraction. That state-

ment indicates unprofessional actions which tend to

intimidate the employee.” J.A. 60.

Rule 022, “Interference with Due Process Hearings”

is not defined in Policy No. 15-001. J.A. 14. Instead the

Policy offers the following examples of what would con-

stitute a violation of the rule:

Intimidating or tampering with an informant or

a witness, tampering with or destroying evi-

dence; interfering with an employee in the pro-

cess of writing a conduct report; making a false

statement of misconduct against another inmate

or staff that could result in a disciplinary action.

(This violation should not be charged for as a

[sic] retaliation for the writing of a grievance.)

Id.

Shaw’s charge of “Interference with Due Process Hear-

ings” alleged:

While routinely monitoring institutional mail I

(CS Shaw) noticed comments in a letter from

Inmate Murphy to Inmate Tracy concerning an

incident that had occurred with an assault on

CO Galle. In this letter, Murphy tries to per-

suade Inmate Tracy to pursue certain actions

that may disrupt a court hearing in which

{nmate Murphy is no part of. Inmate Murphy

states he tried to “do something” about CO

Galle, but He (Murphy) was retaliated against.

There is no evidence of any of the statements in

this letter to be fact.

J.A. 54.

As to the Interference with Due Process charge, hearing

officer Bearley concluded, “The statement referring to

C/O Galle making homosexual advances to another

inmate would result in disciplinary action against stated

employees of the D.O.C.” J.A. 62.

Murphy appealed both decisions to Warden Michael

Mahoney, who denied the appeals. Murphy was sen-

tenced to five days detention, which sentence was sus-

pended. J.A. 59.

Neither Shaw nor any other Prison official charged or

punished Murphy for violating any rule that governed

his legal clerk duties. Further, no Prison official claimed

that Murphy had violated the Prison Mail Policy.

II. Proceedings Below.

On October 24, 1995, Murphy filed a complaint

against Petitioners in the United States District Court for

the District of Montana alleging that they punished him

for the content of his letter to Tracy. J.A. 63. Murphy

alleged that Prison officials deprived him of his rights to

free speech and of access to the courts. He brought his

action “on his own behalf, as an inmate law clerk” and

also brought “this action on his own behalf, as an inmate,

subject to the disciplinary policies of the Department of

Corrections. ...” J.A. 65, {JF 10, 11.

Murphy’s First through Third Claims for Relief were

premised on his role as an inmate legal clerk. J.A. 66-67.

The Fourth and Fifth Claims for Relief were premised

upon Murphy’s status as an inmate. J.A. 67. Among other

things, Murphy sought a declaration that Disciplinary

Rules 009 and 022 were both vague and overbroad as

applied to him. Complaint, {{ 20-21, Prayer for Relief

{1 1-2, J.A. 67. Murphy sought only prospective declara-

tory and injunctive relief pursuant to 42 U.S.C. § 1983.

].A. 67-68. (Contrary to the Prison’s suggestion, Br. for

Pet. 14 n.4, Murphy did not seek expungement of his

record. See J.A. 67-68; see also Edwards v. Balisok, 520 U.S.

641 (1997); Heck v. Humphrey, 512 U.S. 477 (1994).)

Murphy accepts the Prison’s description of the pro-

ceedings in the United States District Court. The District

Court granted summary judgment for the Defendants.

(Note, however, that the District Court also found that

Murphy did not satisfy the Sandin v. Conner, 515 U.S. 472

(1995), requirement that he demonstrate that his restraint

exceeded the expected conditions of his sentence. P.A. 24.

Because Murphy did not allege a denial of procedural

due process to which Sandin would apply, the District

Court’s Sandin holding is superfluous.)

The United States Court of Appeals for the Ninth

Circuit reversed the District Court and directed entry of

summary judgment for Murphy. Murphy v. Shaw, 195 F.3d

1121 (CA 9 1999), P.A. 1, 15. The Prison timely petitioned

this Court for review.?

The Ninth Circuit’s decision is premised upon two

First Amendment grounds. First, “the letter itself consti-

tutes speech that, outside of the prison context, would

2 At the time of the Ninth Circuit’s consideration of this

case, Murphy was confined at a regional prison in Great Falls,

Montana. He is currently confined at a state prison in Shelby,

Montana. The Petitioner’s belief that he is housed at Montana

State Prison in Deer Lodge, Pet. Br., 14 n.4, is mistaken.

doubtless enjoy the protection of the First Amendment.”

Murphy, 195 F.3d at 1125, P.A. 8-9. Second, “the provision

of legal assistance . . . is an activity protected by the First

Amendment.” Id., 195 F.3d at 1126, P.A. 9. The lower

court’s second conclusion is grounded in context: the

Prison had appointed Murphy as an inmate legal clerk

and had authorized his legal clerk activity.

The court below cited its earlier decision in Rizzo v.

Dawson, 778 F.2d 527, 531 (CA 9 1985), in support of its

second proposition. Rizzo held that, in order to state a

claim of retaliation for writ-writing, the prisoner “must

also allege that the prison authorities’ retaliatory action

did not advance legitimate goals of the correctional insti-

tution or was not tailored narrowly enough to achieve

such goals.” Rizzo, 778 F.2d at 532.

Thus, the Ninth Circuit’s holding is premised upon

two First Amendment rights: the right to communicate

facts and advice about another’s case, regardless of

whether the inmate is a legal clerk and, when assistance

is permitted by a prison, the right to assist without impo-

sition of sanctions that are addressed to the content of

that assistance. Because the Prison neither prohibited

inmate-to-inmate correspondence nor ‘prohibited legal

clerk assistance to inmates in its Maximum Security Unit,

the Ninth Circuit engaged in a straightforward analysis

under this Court’s holding in Turner v. Safley, 482 U.S. 78

(1987). The Court of Appeals concluded that the Prison’s

punishment of Murphy failed to satisfy the Turner test.

SUMMARY OF THE ARGUMENT

Montana State Prison inmate Kevin Murphy wrote a

letter to inmate Pat Tracy to give him information and

advice regarding a defense in Tracy’s criminal case. This

information disparaged a prison guard, and the Prison

punished Murphy for that reason. The question presented

is whether a prison may do so.

Whatever we may say about the reasoning of the

lower court in resolving this question, its judgment was

correct. Murphy should not have been punished for the

content of his letter.

1. The right to convey information and advice

regarding pending criminal litigation is a “core” First

Amendment right. As such, and because it is not lost as a

result of conviction of a crime, a prisoner does not lose

that right as an incident to confinement.

While a prison has legitimate penological interests

that it may assert, regulation of the content of speech that

communicates information and advice about pending

criminal proceedings and intended for use in those pro-

ceedings is not one of those interests. Evaluation of

speech communicating facts and advice material to a

criminal defense is exclusively a province of the judicial

branch and its judges, attorneys, and jurors. A prison has

no business preventing the communication of that infor-

mation merely because it believes it to be false or because

it dislikes what it says.

2. The Prison’s punishment of Petitioner Murphy

fails the Turner/ Abbott test. Evidence in the record fails to

demonstrate any logical connection between the Prison’s

articulated interests of preventing inmate-staff confronta-

tion and of ensuring the integrity of its due process

proceedings. Murphy was not punished for words spoken

to a staff member, but for words written about a staff

member and intended to be communicated to an outside

attorney.

The Prison’s punishment of Murphy for what he said

also failed to satisfy the second part of the Turner test.

The Prison claims that Murphy had other avenues for his

speech - that he could have written directly to Tracy’s

attorney. The Prison, however, punished Murphy for the

content of his letter. It did not matter to whom the letter

was addressed.

Requiring prisons to refrain from punishing inmates

when their letters contain information and advice about

legal proceedings outside the prison imposes no burden

on prison resources. The Prison claims that it would have

to distinguish “legal mail” from non-legal mail and that

this would be an impossible task. The Prison raises this

claim for the first time in this Court. The Prison fails to

point out the obvious. Because it already punishes pro-

hibited inmate speech, and may do so legitimately, its

officers engage in the day-to-day function of distinguish-

ing protected from unprotected speech. A holding that

protects speech communicating information and advice

gives guidance to those officers.

Finally, ready alternatives satisfy the Prison’s articu-

lated interests. The Prison claimed that Murphy could

have written to Tracy’s attorney. If this is true, the corol-

lary must be true. Instead of punishing Murphy for the

content of his letter, “he Prison could either have for-

warded it to Tracy’s attorney or returned it to Murphy

with instructions to send it to counsel.

3. If Prisons were permitted to punish prisoners for

speech critical of staff, other public interests would be

adversely affected. This Court many times has justified

prison restrictions on the press and other persons outside

the prison because of the relatively unfettered right of

correspondence between prisoners and outsiders. More-

over, when the prison regulates or prohibits speech criti-

cal of staff that is intended for a courtroom, it harms the

integrity of the judicial process. Ironically, the Prison here

interfered with a due process hearing when it prevented

Tracy from learning information material to his defense

to his criminal charges.

4. This case does not affect the other interests artic-

ulated by the Prison and the amici. Prisons may inspect

and read prisoner mail, including “legal mail.” Prisons

may prohibit inmates from acting as legal clerks. Prisons

may prohibit inmates from conducting investigations and

engaging in other associative activities that they feel will

affect the order and security of the institution. A holding

that a prison may not punish for the content of advice

and information regarding a pending criminal case does

not create a right of one inmate to meet and counsel with

another.

5. Punishing an inmate law clerk for his advice to

another inmate implicates the second inmate’s right of

access to the courts. The right of access consists of two

prongs. Under the first, the prison has a duty of non-

interference with a prisoner’s right to defend against

Cae

criminal charges. Under the second, a prison has a duty

to ensure that a prisoner may bring post-conviction peti-

tions and challenges to the prisoner’s conditions of con-

finement, matters that are not the subject of Sixth

Amendment protection.

Saying that the right of access is satisfied by the

appointment of counsel in a criminal case is not the same

as saying tue prison did not violate its duty of non-

interference. A prison may interfere with a prisoner’s

criminal defense, even if the prisoner has an attorney.

That is what occurred in the case at bar.

Murphy, as an inmate legal clerk, has standing to

raise this issue. Because Murphy was punished, Tracy did

not learn of information material to his defense. Their

interests are inte:*wined and Murphy is in as good, if not

a better position, to articulate the right of access. Both

suffered injuries but only Murphy was in a position to

bring the clairn to redress Tracy’s.

6. The Prison and the amici invite this Court to rule

on the question of whether inmate “legal mail” has the

protection of the First Amendment. This question is not at

issue in this case, because the Prison permitted corre-

spondence between inmates, whether the correspondence

addressed legal matters or not. Contrary to the Prison’s

claim, Turner did not address the question.

If the question were to be addressed in this case, it

should be resolved in favor of protecting the communica-

tion. This Court may hold simply that a prison must

ensure that information material to a criminal defense can

reach the accused inmate or her attorney.

Because the Prison had no interest in punishing an

inmate for communicating information material to

another inmate’s criminal defense, this Court should

affirm the judgment of the Court of Appeals.

ARGUMENT

I. THE PRISON HAD NO LEGITIMATE INTEREST

IN CENSORING INFORMATION COMMUNI-

CATED FOR USE IN A PENDING CRIMINAL

CASE.

A. Inmates Retain Various First Amendment

Rights Including the Right to Communicate

Information and Advice About a Pending Crim-

inal Proceeding.

Prisoners do not lose all protection of the Constitu-

tion when they enter the prison gate. Turner, 482 U.S., at

84. A convicted felon “retains a variety of important

rights that the courts must be alert to protect.” Meachum

v. Fano, 427 U.S. 215, 225 (1976). These include “those first

amendment rights that are not inconsistent with his sta-

tus as a prisoner or with legitimate penological objectives

of the corrections system.” Pell v. Procunier, 417 U.S. 817,

822 (1974).

This Court has called the communication of informa-

tion or advice about pending litigation one of the “ ‘core

First Amendment rights’... .” In re Primus, 436 U.S. 412,

432 (1978) (quoting Buckley v. Valeo, 424 U.S. 1(1976).) This

Court has repeatedly held that giving advice or imparting

information relevant to possible or ongoing litigation is

speech, as well as association, protected by the First

Amendment to the United States Constitution. Brother-

hood of Railroad Trainmen v. Virginia State Bar, 377 U.S. 1,

5-6 (1964); NAACP v. Button, 371 U.S. 415 (1963). The

Trainmen, for example, routinely sent a Lodge secretary

to injured railroad workers or their survivors to “recom-

mend that the claim not be settled without first seeing a

lawyer” and to refer them to a favored lawyer. As to

these practices, this Court said, “It cannot be seriously

doubted that the First Amendment’s guarantees of free

speech, petition and assembly give railroad workers the

right to gather together for the lawful purpose of helping

and advising one another in asserting the rights Congress

gave them... .” Brotherhood of Railroad Trainmen, 377 US.,

at 5. The right to communicate such information and

advice is protected.

B. The Prison Had No Legitimate Penological

Interest in Punishing Respondent’s Speech.

The Primus line of cases addressed non-prisoner

speech. Those cases require the State to show both a

compelling interest in speech regulation and to demon-

strate that the means chosen to advance that interest are

narrowly drawn.

The standards for prisoner speech are different: in

prison, when it conflicts with legitimate penological

interests, some speech may be prohibited and other

speech regulated. Nevertheless, prisoners retain cogniza-

ble speech rights. The State must demonstrate that its

prohibition or regulation of prisoner speech satisfies the

standards of Thornburgh v. Abbott, 490 U.S. 401, 414

(1989), and Turner v. Safley, 482 U.S. 78, 89 (1987). These

cases ask if a prison has any legitimate penological inter-

ests to be served by its rules, practices, or actions. Id.

In the case at bar the Prison lacked a legitimate

penological interest in punishing Murphy for his words.

Information and advice relevant to a defense in a criminal

case is speech of the highest order. The state has no

legitimate interest in suppressing such information. In

fact, the opposite is true. More than merely protecting

such communication, this Court has, as an incident to due

process, compelled it. See Mooney v. Holohan, 294 U.S. 103

(1935) (per curiam); Pyle v. Kansas, 317 U.S. 213, 215-216

(1942); Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding

that state suppression of evidence favorable to the

accused deprives the accused of due process of law and

that the prosecution, when asked, must communicate mit-

igating and exculpatory information to the accused). Sim-

ilarly, the Sixth Amendment ensures that the accused has

the opportunity to present evidence in his defense.

Pointer v. Texas, 380 U.S. 400 (1965); Taylor v. Illinois, 484

U.S. 400 (1988). That opportunity is denied when the state

interferes with the communication of that information.

This Court has thus held that prison regulations or prac-

tices that impose substantial burdens on defense counsel

“unjustifiably obstruct the availability of professional

representation or other aspects of the right of access to

the courts. . . . ” Procunier v. Martinez, 416 U.S. 396,

419-420 (1974), overruled on other grounds, Thornburgh v.

Abbott, 490 U.S. 401 (1989).

If receipt of information and advice relevant to a

criminal defense is a constitutional right of the highest

order, then giving the same information and advice must

be a constitutional right of equal magnitude. Cf., Virginia

State Board of Pharmacy v. Virginia Citizens Consumer Coun-

cil, 425 U.S. 748, 756-757 (1976) (“where a speaker exis-

ts... the protection afforded is to the communication, to

its source and to its recipients both”). The communication

of such information is protected even if it is critical of

state officials. Speech critical of the exercise of the State’s

power “lies at the very center of the First Amendment.”

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1034-35 (1991).

What was the value of the speech in Murphy’s letter?

Murphy told Tracy that he, Murphy, had also been the

victim of Galle’s retaliation (“all that happened is that I

received two writeups from him myself as retaliation”), a

fact which, if proven at trial, would have been relevant to

the question of Galle’s bias. Murphy also recounted infor-

mation that he had learned from others in the Prison.

(“Galle is an overzealous guard” who “has an agenda to

punish and harass inmates”; Galle has made “homosex-

ual advances.”) Finally, he imparted some legal advice:

“Another point is that he grabbed you from behind. You

tell your lawyer to get a hold of me on this. Don’t take a

plea bargain unless it’s for no more time.” This is advice

akin to “You ought to sue,” or, “Your case is worth a lot of

money. You ought to get a lawyer.”

The Prison punished Murphy for statements critical

of a staff member but made to aid in preparation for a

criminal trial that would take place outside the prison.

The undisputed evidence demonstrated that Murphy did

not intend or expect officer Galle, the subject of his

report, to see his letter. Murphy’s letter was not directed

to Galle. Nothing in the record hints that Galle ever saw

it or heard of it. If Galle was to be confronted with

-Murphy’s statements, it wouid be by Tracy’s attorney in

the courtroom. The Prison had no legitimate interest in

controlling that process.

When the communication is directed to a courtroom,

this Court has ensured that it reaches it without state

interference. In Ex parte Hull, 312 U.S. 546 (1941), the

Prison refused to mail a habeas petition pursuant to its

regulation that provided for review of “all legal docu-

ments, briefs, petitions, motions, habeas corpus proceed-

ings and appeals” to determine if they were “properly

drawn.” Ex parte Hull, 312 U.S., at 548-549. This Court

was blunt in its evaluation of the regulation. “Whether a

petition for writ of habeas corpus addressed to a federal

court is properly drawn and what allegations it must

contain are questions for that court alone to determine.”

Id., at 549; see Bounds v. Smith, 430 U.S. 817, 834 (1976)

(Burger, C.J., dissenting) (stating that the state “may not

act in such a manner as to interfere with the individual

exercise of . . . federal rights”); id., 430 U.S. at 838 (Rehn-

quist, J., dissenting) (observing that Hull and other

“access” cases generally stand for the proposition that the

State may not erect a barrier between the prisoner and

the courts); Lewis v. Casey, 518 U.S. 343, 368 (1996)

(Thomas, J., concurring) (pointing out that Bounds’ prede-

cessors comprise two lines of authority, one of which

prohibited “prison regulations that restricted or effec-

tively prohibited inmates from filing habeas corpus peti-

tions or civil rights lawsuits”); cf., Cochran v. Kansas, 316

U.S. 255, 257-258 (1942) (holding that prison could not

legitimately frustrate efforts to appeal).

The proposition that the Prison had no legitimate

interest holds even if we assume that Murphy’s state-

ments were false. Determining the truthfulness of the

information proffered by Murphy for use in a court pro-

ceeding was a judicial, not a penological, function. Nev-

ertheless, Murphy was punished because (as the charge

alleged), “Murphy trie[d] to persuade Inmate Tracy to

pursue certain actions that may disrupt a court hearing in

which Inmate Murphy is no part of.” J.A. 54. Those

“certain actions” would have been the introduction of

evidence material to Tracy’s defense.

Just as this Court ensures that a prisoner’s words

addressed to a court may be heard, the Courts of Appeals

have vigorously asserted the judicial branch’s power to

determine questions of frivolousness and truthfulness.

See Adams v. James, 784 F.2d 1077, 1083 (CA 11 1986)

(Clark, J., concurring in part) (noting that frivolousness

and good faith are concerns of the courts and not the

prison administration); Nolan v. Scafati, 430 F.2d 548, 551

& n.4 (CA 1 1970) (holding that prison could not refuse to

mail an inmate’s letter to the Civil Liberties Union

because prison believed it contained “lies”).

The merit of Murphy’s claims would have first been

measured by Tracy’s defense counsel. Had he found them

wanting, that would have been the end of the matter. Had

defense counsel found Murphy’s claims credible, they

would then have been tested by the prosecutor under

cross examination and in rebuttal. Finally, the fact-finder

in Tracy’s case, whether judge or jury, would have made

the final determination about the veracity and credibility

of Murphy’s claims.

If the prosecutor believed any inmate’s testimony to

be false, the state could bring a perjury charge, again to

be resolved by a court of law and not by the Prison. The

court also had the power to impose contempt sanctions

on a witness. These are all functions of the judicial

branch. The Prison, however, would arrogate these

powers to itself.

By stretching its Disciplinary Rules to fit Murphy’s

letter, Montana State Prison extended its authority into

the court room where it has no interest in order and

discipline. The Prison conferred upon itself the authority

to determine if evidence offered for use at a criminal trial

is “true.” If the Prison’s regulations are given this

breadth, prison officials could punish most prisoners’

offers to testify on behalf of an inmate and against a staff

member. Under its application of Rule 022 (Interference

with Due Process Hearings), the Prison may threaten any

inmate who volunteers to offer testimony on behalf of

another prisoner when that evidence alleges employee

misconduct, J.A. 14, 62, or whenever the Prison believes,

“There is no evidence of any of the statements in this

letter to be fact.” J.A. 54, 62. Under its application of Rule

009 (Insolence), the Prison may threaten to punish an

inmate for tendering evidence any time it feels the evi-

dence may “intimidate the employee” or “harass or cause

alarm in an employee.” J.A. 10, 60.

The interests triggered by Murphy’s letter were judi-

cial and evidential. The Prison therefore lacked a legiti-

mate interest in punishing Murphy.

The Prison, however, articulates various other inter-

ests that are legitimate in the abstract. These should be

tested against the facts of this case under a standard

Turner analysis.

Il. THE PRISON’S PUNISHMENT OF MURPHY WAS

NOT REASONABLY RELATED TO THE

PENOLOGICAL INTERESTS IT ARTICULATES.

A. The Turner Test.

When the state articulates legitimate penological

interests, Turner sets forth the factors that are relevant in

determining the reasonableness of its actions. “First,

there must be a ‘valid rational connection’ between the

[prison’s actions] and the legitimate governmental inter-

est put forward to justify it.” Turner, 482 U.S., at 89.

Second, we ask if “there are alternative means of exercis-

ing the right that remain open to prison inmates.” Turner,

482 U.S., at 90. Third, the courts must consider “the

impact accommodation of the asserted constitutional

right will have on guards and other inmates and on the

allocation of prison resources generally.” Id. “Finally, the

absence of ready alternatives [that accomplish the

prison’s stated goal] is evidence of the reasonableness of

a prison regulation. [citation omitted.] By the same token,

the existence of obvious, easy alternatives may be evi-

dence that the regulation is not reasonable, but is an

‘exaggerated response’ to prison concerns.” Id.

B. There is No Logical Connection Between the

Prison’s Punishment of Murphy and the Inter-

ests it Asserts.

Any “valid, rational connection” between the

prison’s actions and its asserted penological interest must

be supported by competent evidence in the record.

Abbott, 490 U.S., at 414 n.12; Turner, 482 U.S., at 98 (strik-

ing down inmate marriage ban, observing, “petitioners

have pointed to nothing in the record suggesting that the

marriage regulation was viewed as preventing [violent

love triangles]”); cf., Edenfield v. Fane, 507 U.S. 761,

770-771 (1993) (even though state’s asserted interests in

regulating CPAs were “substantial,” it had failed to show

a connection between those interests and its proposed

regulation of CPAs’ commercial speech); First National

Bank of Boston v. Bellotti, 435 U.S. 765, 789-790 (1978)

(assertions that corporate speech would drown out other

points of view not shown by the record); United Transpor-

tation Union v. Michigan Bar, 401 U.S. 576, 580-581 (1971)

(record was “devoid of evidence” that supported order

enjoining Union's “legal advice” to injured workers); New

York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964) (“This

Court's duty is not limited to the elaboration of constitu-

tional principles; we must also in proper cases review the

evidence to make certain that those principles have been

constitutionally applied”).

In this case the Prison did not offer in the lower

courts and has not offered in this Court any evidence that

demonstrates a connection between its legitimate

penological interests and its punishment of Murphy.

1. The Prison had no interest in security and

order in this case.

The Prison’s interests in security and order were not

at issue. Although charged, Murphy was found not guilty

of a violation of Disciplinary Rule 025, “Conduct which

Disrupts or Interferes with the Security or Orderly Opera-

tion of the Institution.” Pet. Br. 11.

This case does not present the question of whether a

prison may impose disciplinary punishment based on

evidence found in a prisoner’s correspondence. Without

question, had Murphy outlined an escape plan, had he

described a plan to attack another, or had he notified

Tracy of the time and place when contraband would be

brought in, that kind of statement could be used as evi-

dence to invoke punishment. In that instance Murphy

would not have been punished for what he said. He

would have been punished for actions that his written

words revealed. In this case Murphy was punished for

what he said, when those words were not evidence of

criminal or other wrongdoing.

2. The Prison did not demonstrate a connec-

tion between Murphy’s punishment and its

interest in regulating speech directed to its

staff.

Murphy was charged with and found guilty of violat-

ing Rule 009, “Insolence,” and Rule 022, “Interference

with Due Process Hearings.” We consider those offenses

in order. :

If the Prison’s application of Rule 009, “Insolence,” is

to pass muster, then evidence must demonstrate a logical

connection between its application to Murphy’s words

and the legitimate penological interest invoked to justify

it. Turner, 482 U.S., at 89-90. The record shows no connec-

tion.

This Court has recognized a right to confront and

criticize law enforcement officers outside the prison con-

text. Lewis v. City of New Orleans, 415 U.S. 130 (1974); City

of Houston v. Hill, 482 U.S. 451 (1987). Murphy recognizes

that an inmate’s exercise of that right inside a prison in

many circumstances would intrude upon the Prison’s

legitimate interests in order and rehabilitation. As part of

its interest in order and rehabilitation, the Prison has a

legitimate interest in reducing staff-inmate confronta-

tions. Rules that prohibit insulting or profane remarks

directed to a staff member, even if the words may be less

offensive than the “fighting words” of Chaplinsky v. New

Hampshire, 315 U.S. 568 (1942), are permissible in the

prison setting. If Murphy had addressed his words

directly to Galle, had he shouted them in the Prison yard,

then they would have come within the province of the

Prison to regulate or punish. Cf., Cantwell v. Connecticut,

310 U.S. 296, 309 (1940) (noting that even religious speech

could incite disorder and thereby constitute a breach of

the peace).

The Prison may not, however, make the same claim

in the case at bar.

__In this case Murphy’s words were not directed to a

Prison employee. They were words about a Prison

employee. Even the Prison’s Disciplinary Rules (under

which Murphy was charged) distinguish words

addressed to a Prison employee from words about a

Prison employee. Rule 009 notes that “Insolence” applies

to “language, writing or gestures directed to an

employee.” Rule 009; J.A. 10 (emphasis supplied). Rule

022 exempts statements critical of employees when they

are included in a grievance addressed to Prison adminis-

trators. Rule 022, J.A. 14.

Put differently, in the context of this case, the Prison

exempts criticism about an employee when it is

addressed to Prison administrators, but punishes the

same criticism about an employee when it is intended to

be addressed to a court. The Prison offered no evidence

to explain why one should be exempted and the other

punished.

It is undisputed that Murphy did not believe that

officer Galle would see his letter. Murphy Aff. { 10, J.A.

88. The Prison offered no evidence that the officer ever

saw it. Prison officials have never submitted evidence

demonstrating a connection between its penological

interest in reducing staff-inmate confrontations and an

inmate’s communicating information and advice relevant

to another prisoner’s criminal defense for use in a court-

room, when that information disparages a prison

employee.

3. The Prison did not demonstrate a connec-

tion between Murphy’s punishment and its

interest in ensuring the integrity of its due

process hearings.

The Prison has an interest in ensuring that its due

process hearings are orderly and that the testimony and

other evidence submitted in those hearings is accurate.

See Mahoney Aff., { 4.c, J.A.96 (stating that inspection of

mail furthers the Prison’s interest in preventing plots to

have inmates lie in due process hearings). The Prison,

however, has not demonstrated how a letter conveying

information for use in a court proceeding and recom-

mending that an inmate’s attorney first review the infor-

mation affects the Prison’s interest in its own pro-

ceedings.

4. Because the Sixth Amendment and due pro-

cess rights of other prisoners are implicated,

any evidence the Prison might proffer to

demonstrate a connection between its legiti-

mate interests and Murphy’s punishment

would have to be very probative.

Even if the Prison had proffered the necessary evi-

dence, it would have to be closely related to an articu-

lated interest, for the Prison would be regulating not only

the speaking prisoner’s First Amendment rights, but also

the receiving prisoner’s due process rights. Brady v. Mary-

land; Pyle v. Kansas; Mooney v. Holohan, supra; cf., Martinez,

416 U.S., at 408 (both parties to correspondence have free

speech interests). This is so because the essence of Mur-

phy’s communication was, “don’t plead guilty, I have

learned and know personally facts about the guard’s

reputation for treatment of other inmates.” This was good

advice because, as Murphy pointed out above, Montana

admits evidence of the character of the alleged victim to

support a claim of self defense. Rules 404(a)(2); 405

Mont. R. Evid.; Shadwell, above (prior threats and reputa-

tion for violence were admissible).

Had Murphy said, “I think you have a defense under

Shadwell,” that surely would not have been punishable.

But Murphy wrote about the traits themselves. If Mur-

phy had paraphrased Shadwell (i.e. “Galle has made

threats and has a reputation for violence to inmates”),

that should not make his statement punishable. The state-

ments are fundamentally the same, but the Prison pun-

ishes references to character traits under Rule 009.

Whether Murphy describes the traits or used the short-

hand, “a defense under Shadwell,” the uttering of either

statement would be subject to sanction by the Prison.

C. If a Prison Punishes Content of Communica-

tions, Then Inmates Have No Other Avenues by

Which to Communicate Criticism of Prison

Staff.

If the inmate has “alternative means of exercising the

right” after the avenue complained of is foreclosed, then

the prison’s actions are not seen as exaggerated. Turner,

482 U.S., at 90. Murphy, however, was punished for what

he said, not for how he communicated his message. Pun-

ishing Murphy for the content of his message cut off all

avenues of communication.

A prisoner has only two means of notifying a defen-

dant or his attorney that the prisoner knows facts rele-

vant to the defendant's case. He may speak or he may

write. Because the Prison punishes an inmate for the

content of the communication, it does not matter how

many avenues of communication may be available.

Regardless of the avenue, the content of the communica-

tion is punished by the Prison.

The Prison contends that the court below applied this

Turner standard incorrectly when it concluded that noth-

ing in the record showed that Murphy had access to the

name and address of Tracy’s lawyer. The Prison contends

that Murphy could have written to Tracy’s lawyer, and

that such a letter would have been permitted. This begs

two questions.

First, it does not matter whether Murphy had access

to Tracy’s attorney or not. Murphy was punished for the

content of his letter, without regard to the nature of his

addressee. (The letter would not necessarily have been

privileged from inspection. See Mail Policy { 1.B.2, J.A.

35; { VIIA, J.A. 43.) Second, if writing to Tracy’s lawyer

was the preferred avenue, as the Prison contends, then

we must ask two questions. Why did the Prison punish

Murphy instead of sending his letter to Tracy’s attorney?

If that were too great a burden, then why punish instead

of returning Murphy’s letter to him with instructions to

send it to Tracy’s attorney? Both methods address the

Prison’s articulated interests. That the Prison punished

Murphy instead of redirecting his letter demonstrates the

Prison’s “exaggerated response.” Turner, 482 U.S., at 90.

D. Accommodating the Right to Communicate

Advice and Information About a Defense in a

Criminal Case Has No Legally Recognizable

Impact Upon Staff, Other Inmates, or Prison

Resources.

Turner considers the impact of accommodating the

inmate’s right upon staff, other prisoners, and prison

resources. Turner, 482 U.S., at 90; Abbott, 490 U.S., at 418.

Here the Prison contends for the first time that requiring

it to distinguish “legal mail” from non-legal mail would

impose “an intolerable burden.”> The claim is empty

because the Prison already engages in that kind of func-

tion on a regular basis.

The Prison punishes insolent speech. Rule 009, J.A.

10. It must therefore distinguish between insolent speech

and speech that is not insolent (protected speech) as a

matter of course. (Anything else would constitute arbi-

trary punishment, which would violate the due process

clauses. Cf., Sandin v. Conner, 515 U.S. 472, 487 n.11 (1995)

(noting that prisoners retain protection from arbitrary

punishment).) The Prison punishes threatening speech.

Rule 004, J.A. 9. Inevitably, its hearing officers are called

upon to distinguish threatening from non-threatening,

protected, speech. The Prison punishes speech that incites

a riot or strike, Rule 011, J.A. 11, and presumably does

not punish speech that does not incite. It punishes speech

that interferes with due process hearings but would not

punish speech that does not. More important, prison

officials are routinely called upon to distinguish speech

that is intended to be a grievance. Rule 022, J.A. 14.

Holding that the Prison may not punish the commu-

nication of information and advice material to an

inmate’s criminal case does not impose a burden. Instead

it provides guidance to the prison officials in their day-to-

day function of distinguishing permissible speech from

impermissible speech.

3 This claim was not raised in the courts below. Br. of

Appellee 12, Murphy v. Shaw, 195 F.3d 1121 (CA 9 1999); Def.’s

Resp. to Pl.’s Mot. for Summ. Jmt. and Br. in Supp. of Mot. for

Summ. Jmt. 6, Murphy v. Shaw, No. CV 95-62-H-CCL (D. Mont.

July 8, 1996); C.R. 25.

E. Ready Alternatives Satisfy the Prison’s Inter-

ests.

As Murphy noted above, the Prison’s interest in dis-

ciplining “Insolence” appears to be prevention of inmate-

staff confrontations. The Prison also has a legitimate

interest in rehabilitating inmates. Teaching civility would

appear to be related to an interest in furthering rehabilita-

tion.

The alternatives available to the Prison appear in its

policies. It punishes words directed to instead of about

staff. See Rule 009, J.A. 10 (punishing “abusive lan-

guage . . . directed to an employee”); Rule 022, J.A. 14

(exempting statements about an employee contained in a

grievance). Nothing compels the Prison to show letters

like Murphy’s to the subjects of those letters. As the court

below concluded, the Prison may readily prevent con-

frontations by shielding its staff from communications

about them.‘

With respect to its interest in rehabilitation, the

Prison may impose rules with an eye to ensuring that

inmates use acceptable means of resolving grievances and

disputes. Bradley, 64 F.3d, at 1280. In this case, the

4 Compare Bradley v. Hall, 64 F.3d 1276, 1281 (CA 9 1995)

(distinguishing disparaging remarks about staff from

disparaging remarks to staff and finding the former protected);

Loggins v. Delo, 999 F.2d 364, 376 (CA 8 1993) (same); Brooks v.

Andolina, 826 F.2d 1266, 1268 (CA 3 1987) (same); McNamara v.

Moody, 606 F.2d 621, 624 (CA 5 1979) (same), with, Leonard v. Nix,

55 F.3d 370, 374 (CA 8 1995) (distinguishing disparaging

remarks about staff from disparaging remarks to staff and

finding the latter unprotected); Goff v. Dailey, 991 F.2d 1437 (CA

8 1993) (same). ;

Prison’s discipline of Murphy runs counter to this inter-

est. Participation in the judicial process is an acceptable

means of resolving disputes. Officer Galle’s character was

better addressed in the courtroom than in the prison

yard.

The Prison’s “Interference with Due Process Rule”

furthers a legitimate interest in ensuring the integrity of

its due process proceedings. See Mahoney Aff., ]4.c., J.A.

96. This interest is not hindered by protecting speech that

communicates information and advice about a proceed-

ing taking place outside the Prison’s jurisdiction. Protect-

ing that speech acommodates the Prison’s interest.

Ironically, the Prison’s enforcement of this rule did inter-

fere with a due process hearing. Tracy was denied the

opportunity to pursue and present a defense to his

charges.

F. Conclusion.

Application of the four Turner factors demonstrates

that the Prison’s punishment of Murphy was not reason-

ably related to any of the legitimate penological interests

that it articulates. The Prison failed to demonstrate a

connection between its interest in preventing staff-inmate

confrontations and its interest in the integrity of its due

process hearings. Punishment of the content of Murphy’s

speech cut off all avenues of communication. Permitting

Murphy’s words to pass would have little or no effect on

the Prison’s staff and other inmates. Ready alternatives,

including the redirection of Murphy’s letter, demon-

strated that the Prison’s reaction was exaggerated.

Ill. PERMITTING PRISONS AND JAILS TO PUNISH

INMATES FOR STATEMENTS CRITICAL OF THEIR

STAFF AFFECTS OTHER PUBLIC INTERESTS.

A. The Public’s Interests in Information About its

Jails and Prisons and in the Legitimacy of Crimi-

nal Trials Outweighs the Prison’s Interest in

Suppressing Statements about its Staff.

This Court has repeatedly noted the important func-

tion that inmate communications play in the public over-

sight of jails and prisons. In several cases, this Court

recognized the importance of the right of inmates to

correspond with the press and relied upon that right to

justify limitations on other First Amendment rights.

Houchins ». KQED, Inc., 438 U.S. 1, 15 (1978) (upholding

prohibition on inspection of jail, stating, “Respondents

have a First Amendment right to receive letters from

inmates criticizing jail officials and reporting on condi-

tions”); Pell v. Procunier, 417 U.S. 817, 824, 826 (1974)

(upholding prison’s limits on face-to-face interviews in

light of other alternatives and noting, “One such alterna-

tive available to California prison inmates is communica-

tion by mail”); Saxbe v. Washington Post Co., 417 U.S. 843,

847 (1974) (same, noting, “newsmen and inmates are per-

mitted virtually unlimited written correspondence with

each other”).

In the case at bar the Prison punished Murphy for the

content of his statements. Had Murphy included the same

statements in a letter to the press, he would have been

subject to the same sanctions. The Prison’s view — that it

may sanction Murphy for statements that disparage staff

- is inconsistent with the Pell line of jurisprudence. The

Prison would close the most important source that the

7 a ie

public has to learn about conditions in its jails and

prisons and the practices of their guards.

This Court has also noted the role of free speech in

the public education and petition functions of criminal

trials. The primary purpose of a trial is to achieve justice.

The trial also educates the public about the issues of the

trial. A public trial serves to act as a check against abuse.

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 568-569

& n.7 (1980). The public nature of the trial ensures that

there is not only fairness but the perception of fairness.

Richmond Newspapers, 448 U.S., at 570; In re Oliver, 333

U.S. 257, 270 (1948). The role of the witness thus goes

beyond fair trial guarantees. It carries a free speech com-

ponent as well.

The right to participate in the trial, a right that goes

beyond the accused’s right to a fair trial, is an ancient

one. “ ‘There is an invitation, to all persons who can

inform the Court concerning the matter to be tried, to

come into the court, and they shall be heard.’” VI J.

Wigmore, Evidence § 1834, p. 437 (J. Chadbourne Rev.

1976) (quoting Cornish’s Trial, 11 How. St. Tr. 460 (1690).)

This is, as this Court has said, “unbroken, uncontradicted

history.” Richmond Newspapers, 448 U.S., at 573.

The First Amendment, in conjunction with the

Fourteenth . . . share a common core purpose of

assuring freedom of communication on matters

relating to the function of government. Plainly it

would be difficult to single out any aspect of

government of higher concern and importance

to the people than the manner in which criminal

trials are conducted; as we have shown, recogni-

tion of this pervades the centuries-old history of

open trials and the opinions of this Court.

Richmond Newspapers, 448 U.S., at 575.

That is not to say that every witness, much less every

inmate-witness, has an unvarnished right to appear at a

trial and testify. The trial itself is subject to regulation by

the presiding judge. The calling of witnesses and the

eliciting of their testimony - and therefore the witness's

right to give testimony - is likewise subject to regulation

by the court. See Rule 104, Fed. R. Evid. And that is the

point. The witness's interest in giving testimony should

be regulated by the court, not by the Prison through its

imposition of punishment.

B. An Accused’s Interest in Obtaining Timely

Exculpatory Facts Is Greater Now than it Was

When Brady Was Decided.

In 1963, when Brady v. Maryland was decided, a

defendant's opportunities to obtain post-conviction relief

from a Brady violation were less restricted than they are

today. No fixed time limit was placed on federal habeas

or federal post-conviction petitions, see 28 U.S.C. §§ 2254;

2255 (1995), or on most state post-conviction petitions. See

§ 3, Uniform Post-conviction Procedure Act (1966), in 11A

Uniform Laws Annotated 334 (1995); Im re McNair, 189

Mont. 321, 615 P.2d 916 (1980).

Times have changed. Both state and federal statutes

and court decisions have severely limited the time in

which to seek post-conviction relief - even when the state

has suppressed exculpatory evidence. See Mont. Code

Ann. § 46-21-102(1) (1999) (establishing a one-year statute

of limitations); 28 U.S.C. § 2244(d)(1) (1999) (one year); 28

U.S.C. § 2263 (1999) (180 days for capital cases in qualify-

ing states); but see 28 U.S.C. § 2244(d)(1)(C) (extending the

period for information that could not reasonably have

been discovered); 28 U.S.C. § 2263(b)(3)(B) (extending the

deadline in capital cases for an additional 30 days for

“good cause”). This case illustrates the impact: Tracy’s

claim that the Prison suppressed facts relevant to his

defense is time-barred.

IV. THIS CASE DOES NOT IMPLICATE THE OTHER

INTERESTS AND CONCERNS ARTICULATED BY

PETITIONER AND THE AMICI.

A. The Prison Conflates This As-Applied Chal-

lenge With a Facial Challenge to Its Regula-

tions.

The analysis of the issue in this case should not be

undertaken with reference to the power to prohibit corre-

spondence, which this Court ratified in Turner, but with

reference to Turner's four-part test and its requirement

that evidence demonstrate a relationship between the

Prison’s articulated interest and its punishment of Mur-

phy for the content of his writing. The Prison’s analysis is

appropriate to a facial challenge to its Rules, but not to a

claim that those Rules have been applied to suppress

speech. The question is not, “Are the Prison’s Rules

facially neutral?” Murphy did not challenge the Rules on

their face. Instead the question is whether facially-neutral

rules have been applied in an unconstitutional manner.

The record shows that the Prison expressly punished

Murphy for the content of his letter. Under these facts,

the application of these rules must satisfy Turner’s stan-

dards.

B. Many Matters to Which the Prison and Its

Amici Point Are Not at Issue.

1. The Prison may inspect and read inmate-to-

inmate mail.

Montana State Prison’s Mail Policy has never been at

issue in this case. The Policy permitted inmate-to-inmate

correspondence and authorized Prison officials to inspect

those letters. The Prison’s power to inspect letters,

whether for escape plans, contraband, or the like, has

never been questioned in this case.

The Prison may also sanction immates when the let-

ters contain such things as contraband or escape plans. In

such cases, the Prison is not punishing an inmate for the

content of the letter, but for conduct that the content

reveals. Murphy did not discuss prohibited conduct; his

letter contained no contraband.

2. The Prison may prohibit inmates from hold-

ing the position of legal clerks and may

prohibit inmates from acting as formal or

informal writ-writers.

A rule that protects a prisoner from being punished

for the content of his letter when he communicates infor-

mation material to another inmate’s criminal case does

not affect the Prison’s power to regulate the practice of

“writ-writing” or its power to establish, regulate, or abol-

ish the formal position of inmate legal clerk. See Johnson v.

Avery, 393 U.S. 483, 489-490 (1969). The Prison is free to

tell Murphy that he no longer may assist inmates in the

writing of writs: it may abolish the legal clerk position. It

did not in this case. To the contrary, it employed Murphy

as an inmate legal clerk.

The Prison and the United States accuse the court

below of creating a “special right to assist.” Their accusa-

tion is belied by the facts and the holding of the lower

court. The Prison had assigned Murphy the duties of an

inmate legal clerk. The Prison did not ban his activity and

no ban on his activity was ever at issue. The Prison did

not prohibit inmate legal clerks from assisting repre-

sented inmates. It did not prohibit Murphy from giving

advice to Tracy. Neither was he prohibited from writing

to Tracy. The holding of the lower court recognized this.

P.A. 7-8.

3. The Prison may prohibit inmates from con-

ducting inwestigations.

The Prison and its amici imagine inmates as roving

paralegals. They exaggerate. Holding that the Prison may

not punish an inmate for the content of his letter, when

that content is advice and information material to another

prisoner’s defense in a criminal case, is far different from

saying that the first inmate has a right to go forth and

investigate. Murphy did look into the charges against

Tracy, but the Prison neither prohibited his actions nor

sanctioned him for them.

In the future the Prison may reasonably prohibit its

inmates from actively looking into charges against

another inmate. See Zemel v. Rusk, 381 U.S. 1 (1965). The

Prison may regulate and prohibit prisoners’ efforts to

organize, whether for litigation or to act im concert for

other purposes. Jones v. North Carolina Prisoners’ Union,

Inc., 433 U.S. 119 (1977). It may not, however, prohibit

them from reporting to an accused inmate’s attorney

information that they learned in the lunch line.

4. The Prison may read inmate-to-inmate mail

regarding legal matters.

Murphy has never claimed that his letter to Tracy

was privileged from inspection. He knew that inmate-to-

immate mail was inspected and read by Prison officials

pursuant to the Prison’s Mail Policy. Murphy Aff. { 10,

J.A. 88. He did not and does not challenge the Prison’s

power either to inspect or to read his letters to inmates.

This case and the holding of the court below do not raise

that issue. Prisons may read inmate-to-inmate mail and

they may read mail between inmates and inmate law

clerks. This case does not change that proposition.

5. A holding that the Prison may not censor

information and advice does not create a

right to meet and counsel with another

inmate.

The Prison and its amici call forth the spectre of

inmate legal clerks asserting rights to meet with the

_-- -—-

eae ae ee Re eT

inmates they assist. The absence of this issue is dramati-

cally set forth by the facts. The Prison did prohibit Mur-

phy from visiting Tracy. He obeyed that rule. He did not

challenge that rule. As it could before the lower court's

decision, the Prison remains free to regulate the means by

which information material to another inmate’s criminal

defense reaches that inmate. The Prison may not, how-

ever, suppress the message by punishing the messenger.

6. Conclusion.

A holding that a prison may not sanction a prisoner

when he offers information and advice regarding another

prisoner’s criminal case, does not trigger the hypothetical

outcomes proffered by the Prison and the amici.

Vv. THE IMPOSITION OF DISCIPLINE AGAINST

INMATE LEGAL CLERKS FOR THE CONTENT OF

THEIR ADVICE DEPRIVES OTHERS OF ACCESS

TO THE COURTS.

A. Punishing Inmate Legal Clerks for the Content

of Their Advice Constitutes a Deprivation of

the Recipient’s Right of Accese to the Courts.

“Right of access to the courts” is shorthand for two

unrelated sets of circumstances. A prison creates the first

circumstance when its regulations or practices

“unjustifiably obstruct . . . access to the courts... . ”

Martinez, 416 U.S., at 419-420; see Bounds, 430 U.S., at 834

(Burger, C.J., dissenting). When that happens, “It is

for the courts to remedy past or imminent official inter-

ference with individual inmates’ presentation of

claims. . . . ” Lewis, 518 U.S., at 349.

The second circumstance arises coincident to confine-

ment. “[Pjersons in prison, like other individuals, have

the right to petition the Government for redress of griev-

ances which, of course, includes ‘access of prisoners to

the courts for the purpose of presenting their complaints.’ ”

Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam). This

Court’s decisions hold that the right to petition for

redress is not fully deprived as an incident to confine-

ment. Although prisoners may not be the “litigating

engines” that they might be outside the prison wall, they

must be given some means by which to seek court review

of their convictions or the conditions of their confine-

ment. Lewis, 518 U.S., at 315. This second circumstance

applies expressly to those litigating activities to which the

Sixth Amendment right does not attach: seeking of post-

conviction relief and filing of civil rights claims. In the

case at bar, however, the Sixth Amendment right did

attach to Tracy’s defense of criminal charges in the trial

court.

The Prison ignores the first circumstance and

addresses only the second. It contends that Tracy’s right

of access was fully satisfied by the state’s appointment of

counsel to represent him. Saying Tracy had an attorney,

however, is not the same as saying the Prison did not

interfere.

A prisoner’s fundamental right of access to the courts

“encompasses all the means a defendant or petitioner

might require to get a fair hearing from the judiciary on

all charges brought against him or grievances alleged by

him.” Gilmore v. Lynch, 319 F. Supp. 105, 110 (N.D. Cal.

1970) (three judge court), aff'd sub nom., Younger v. Gilm-

ore, 404 U.S. 15 (1971). By its very terms and by the fact

that the “right of access” is premised on more than the

right to petition, the right of access overlaps both due

process and Sixth Amendment rights.

Although Tracy had an attorney, this did not dimin-

ish the Prison’s duty not to interfere with his defense. Yet

it applied its rules to Murphy and thereby interfered with

Tracy’s ability to present an arguably meritorious defense

to the charge made against him. This is a far greater

burden than causing defense counsel to be less efficient,

which was found to interfere with the right of access in

Martinez. Martinez, 416 U.S., at 420.

Murphy was the source of information material to

Tracy’s defense. That the prison trained him to be an

inmate legal clerk does not change the analysis. If any-

thing, it enhances the right, for the inmate legal clerk is

more likely to recognize the significance of the facts.

B. Murphy Had Standing to Raise the Right of

Access.

While Murphy’s role of inmate legal clerk is not

critical to the resolution of the free speech issue, it is

necessary to the access to the courts issue. This Court and

Courts of Appeals, when squarely presented with the

question, have split on the question of whether an inmate

legal clerk has standing to assert the right of access of the

prisoner he would assist. Some have held or tacitly con-

cluded that an inmate legal clerk has standing to assert

the right of access to the courts. See Johnson v. Avery, 393

U.S. 483 (1969) (inmate law clerk asserted the access to

court right of the inmates whom he assisted); Gibbs v.

Hopkins, 10 F.3d 373, 378-79 (CA 6 1993) (holding inmate

law clerk may amend his complaint to allege denial of

access to the courts by reason of his punishment); Buise v.

Hudkins, 584 F.2d 223, 227 (CA 7 1978) (holding that

Johnson “establishes that [the inmate law clerk] can raise

the claims of the other inmates because in Johnson only

the jailhouse lawyer was a party and the decision rested

on the denial of access to the courts for his fellow

inmates”). Others reach a different conclusion. See Smith

v. Maschner, 899 F.2d 940, 950 (CA 10 1990) (recognizing

controversy over law clerk’s right to assert inmate’s right

of access).

The question of standing is governed by this Court's

reasoning in Singleton v. Wolff, 428 U.S. 106, 114-16 (1976):

“{T]he relationship between the litigant and the third

party may be such that the former is fully, or very nearly,

as effective a proponent of the right as the latter.” Single-

ton, 428 U.S., at 115. Nevertheless,

Even where the relationship is close, the reasons

for requiring persons to assert their own rights

will generally apply. If there is some genuine

obstacle to such assertion, however, the third

party’s absence from court loses its tendency to

suggest that his right is not truly at stake, or

truly important to him, and the party who is in

court becomes by default the right’s best avail-

able proponent.

Id., 428 U.S., at 116.

The relationship between Murphy and the inmates he

assists is such that he is fully or nearly as effective a

proponent of the right of access. When the prison disci-

plines an inmate legal clerk ina way that burdens the

assisted inmate’s right of access, the rights of both the

clerk and the person he assists are inextricably inter-

twined. When the prison disciplines a legal clerk for the

content of his advice, it ultimately threatens, both directly

and indirectly, those for whom the rule of mutual assis-

tance was primarily intended. Vaughn v. Trotter, 516

F. Supp. 886, 893 (M.D. Tenn. 1980). If inmate legal clerks

cannot raise access claims under these circumstances,

prison officials would be free to prevent inmate access by

the simple expediency of punishment and harassment of

inmate legal clerks. This would erect a genuine obstacle

to the inmate’s ability to assert his right of access. Under

such conditions, Murphy has standing to assert the right

of access of the inmates he assists.

Unlike the abstract notions of access to the courts

considered in Lewis v. Casey, the Prison officials here

engaged in the active practice of punishing an inmate

legal clerk because they did not like or because they

disagreed with his statements. Murphy was disciplined

and Tracy pled guilty without the benefit of Murphy’s

advice and information. When Prison officials hold out

the promise of punishment for communicating certain

things to an inmate who an inmate legal clerk is assisting,

they ensure, as the Prison observes, Pet. Br. 14 n.4, that

those communications will not occur, notwithstanding

their importance to a claim to be made by the assisted

inmate. This is an actual injury. Laird v. Tatum, 408 U.S. 1,

11-13 (1972). Neither Murphy’s nor Tracy’s injuries were

theoretical. Under Singleton’s test, Murphy should have

standing to assert a right of access to the courts.

C. Conclusion.

Murphy has established a violation of Tracy’s right of

access to the courts. Murphy, acting in his capacity as an

inmate law clerk, attempted to bring a potential defense

to Tracy’s attention. Murphy’s recommendation never

reached Tracy, who was then prevented from investigat-

ing or raising the defense, and ultimately pled guilty to

assault. Tracy Aff. { 12, J.A. 84. Tracy’s claim never made

it into court. And Murphy, like the inmate in Johnson v.

Avery, was disciplined for assisting. Murphy Aff., 1] 5-6,

J.A. 78.

VI. THE PRISON AND THE AMICI INVITE THIS

COURT TO RULE ON THE RIGHT TO CORRE-

SPOND REGARDING LEGAL MATTERS; WERE

THIS ISSUE PRESENT IT WOULD BE RESOLVED

IN FAVOR OF SUCH A RIGHT.

A. The Right to Correspond Has Not Been Put at

Issue by the Facts in this Case.

Because the Prison permitted inmates to correspond

with other inmates in its Maximum Security unit (and at

other prisons), see Mail Policy, { II.B.2, J.A. 36, the ques-

tion of whether the Prison could properly prohibit letters

that communicated facts and advice material to an

inmate’s criminal defense was not at issue. The Prison

and amici, however, argue strenuously for such a prohibi-

tion. This Court need not reach that issue, for to do so

would be to offer an advisory opinion. Nevertheless, if it

is considered, the issue should be resolved in favor of a

right to communicate facts material to a defense.

B. Turner Did Not Address the Application of

Rules Prohibiting Correspondence Regarding

Legal Matters.

The Prison goes to great lengths in a failed a‘ ._...pt to

demonstrate that this Court, in Turner, approved the

application of rules so as to prohibit inmate correspon-

dence on legal matters. Pet. Br. 28-30. As the United

States has pointed out in its amicus brief, Br. of U.S. 25,

this Court upheld “the facial validity of the correspon-

dence regulation,” Turner, 482 U.S., at 99, which permit-

ted inmate-to-inmate correspondence on legal matters, id.

at 81, “read petitioner’s additional challenge to the Dis-

trict Court’s findings to be a claim that the District Court

erred in holding that the correspondence regulation had

been applied in an arbitrary and capricious manner,” and

remanded that question to the Court of Appeals. Id. at

100.

Permitting direct correspondence with another

inmate is but one means of ensuring that facts material to

a defense come to the attention of the accused and her

attorney. Inmates may, as the Prison has pointed out,

correspond directly with the accused’s attorney. But this

is true only if the inmate knows who and where the

- attorney is. Otherwise the facts that prove the accused's

innocence may never see the inside of the courtroom.

This Court should hold then, that when Prison officials

act in such a way to prevent communication of material

facts to an accused or her attorney, they violate the First

and Sixth Amendments and the right of access.

This would call for nothing out of the ordinary. The

Federal Bureau of Prisons currently permits inmates to

correspond with each other when they are witnesses or

parties in the same legal action. 28 C.F.R. § 540.17. Mur-

phy’s letter to Tracy would have satisfied those stan-

dards. Articulating a rule that requires prisons and jails

to ensure that material facts reach either the inmate or his

attorney would do nothing more than carry out Turner's

“other avenue” factor. Turner, 482 U.S., at 90.

CONCLUSION

For the foregoing reasons, the judgment of the

United States Court of Appeals should be affirmed.

Respectfully submitted,

Pror. Jerrrey T. Renz

Counsel of Record

Pror. CYNTHIA ForpD

CRIMINAL Derense CLINIC

ScHOOL oF Law

UNIVERSITY OF MONTANA

Missoula, Montana 59812

(406) 243-4823

Counsel for Respondent

December 2000

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.