by David M. Reutter

On January 12, 2023, California’s Sixth District Court of Appeal concluded that attorney-client privilege did not apply to a state prisoner’s “kites,” even when included in an envelope addressed to his attorney. Written messages sent in violation of jail rules, the kites were ordered turned over to prosecutors in the case.

While awaiting trial at the Santa Cruz County Jail for an alleged contract hit carried out at the jail for a street gang, Jason Joel Cortez attempted to mail correspondence to his attorney. But first it was inspected with all other outgoing mail by a guard searching for contraband. As soon he touched the envelope, he noticed it was “a little heavier towards the center” where there was a “bulk.” The guard said the envelope smelled of feces, too. Suspecting contraband, he opened the envelope outside Cortez’s presence.

Inside was another envelope fashioned from lined yellow paper sold in the jail commissary, and on that was written “do not read.” But the guard said the fecal order was noticeably stronger at that point, so he opened the yellow envelope, finding inside multiple “kites” on different colored paper and in different handwriting. Another handmade envelope contained more kites that smelled of feces.  On that envelope was the message, “please keep this for [ ] the future do not read please.”

A kite was described to the Court as a clandestine note usually written on a small piece of paper in very small print, which prisoners use to communicate with another person inside or outside the jail. They are rolled up, often wrapped in plastic to minimize their size and facilitate concealment in a prisoner’s clothing, mouth or rectum. They are considered a security risk because they often communicate smuggling or assault plans.

When Cortez’s lawyer learned of the intercepted correspondence, he brought it to the attention of the magistrate judge presiding over the murder case. Over Cortez’s objection, the judge conducted an in-camera inspection. The Court found on October 8, 2020, that the kites were from individuals other than Cortez, so no attorney-client privilege applied. It ordered the kites disclosure to prosecutors.

Cortez sought a writ of mandate in state Superior Court to prevent disclosure. That writ was granted, with the court finding attorney-client privilege applied to the correspondence. The People appealed.

The Sixth District began by noting that “attorney-client privilege only protects communications between attorney and client made for the purposes of seeking or delivering the attorney’s legal advice or representation,” citing Los Angeles Cty. Bd. of Supervisors v. Superior Court, 2 Cal.5th 282 (2016). Put differently, “the privilege does not apply to every single communication transmitted confidentially,” the Court explained. Though “the privilege protects those communications that bear some relationship to the attorney’s provision of legal consultation . . . not all communications between attorney and client become privileged solely by virtue of the mode of communication.”

The magistrate judge had concluded that the rolled up pieces of paper had “teeny tiny writing” consistent with the kites used by gang member detainees to communicate with each other; that they were all addressed to people other than Cortez’s attorney; and that all or most of the kites appeared to originate from people other than Cortez. The Sixth District agreed.

It emphasized that “it is irrelevant whether the jail violated any applicable statute or regulation by opening the envelope and examining its contents outside Cortez’s presence.” Even if there were a violation, “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.”

Thus the Superior Court order was vacated and the order directing disclosure reinstated. Attorneys Jeannine G. Strong of Strong Appellate Law in Carmel and Zachariah D. Schwarzbach appeared for Cortez. See: People v. Superior Court (Cortez), 87 Cal. App. 5th 474, (2023).

A petition for review to the state Supreme Court was denied on April 26, 2023, when the high court also ordered this opinion to remain unpublished. See: People v. Superior Court, 2023 Cal. LEXIS 2320.

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