South Dakota defense lawyers decry wait times, pat-down searches at penitentiary

Defense attorneys in South Dakota’s most populous county are at odds with the state Department of Corrections over problems with client access they say raise civil rights questions and cost taxpayers money.

An advisory group for public defenders in Minnehaha County discussed the problem during a meeting last week with County Commissioner Joe Kippley, the commission’s liaison to the group.

“We’re learning that attorneys are having to jump through some extra hoops to get access to their clients,” Kippley said.

He reached out to the DOC to learn more about the delays and the issues surrounding them but didn’t get an immediate response, he said.

For months, taxpayer-funded public defenders, public advocates and court-appointed private attorneys have privately exchanged stories of delays in meeting prison clients, who have a constitutional right to representation.

Some attorneys appear for scheduled appointments, only to wait an hour or more to see clients, said Minnehaha County Public Defender Traci Smith. Others have been told that staff are unable to locate their client on prison grounds.

Those wait times translate into billable hours, which are charged to the county in cases involving court-appointed private attorneys or attorneys employed by the public defender.

“We bill for all of the time waiting to see a client for an attorney visit sitting at the pen, just as a private attorney would bill for all their time,” Smith said.

Clients with court-appointed attorneys are technically charged for their attorneys’ time. The county places a lien on the individual for the legal fees, Kippley said, but those fees are rarely paid off. On rare occasions, someone will appear before the commission to settle a lien in order to become eligible for a mortgage, but those situations are “the exception that proves the rule.”

“You don’t ever really get it back,” Kippley said.

Search policy prompts additional backlash

The issue of access and delays came to a head recently over a search policy that Smith and others see as legally questionable, absent a clear security breach by attorneys.

A prison policy inked in March says that all visitors – without a noted exception for lawyers conducting official business – must first pass a background check, and “when possible,” consent to a “search of my person and/or any of my personal property … or of any vehicle that I may bring on the grounds of this facility.”

The policy also includes a list of items considered contraband and outlines the penalty for attempts to pass such items along.

Visitors to DOC facilities typically empty their pockets and clear metal detectors before entry, with staff using metal detector wands to check those who set off a walk-through detector. Similar security setups are used at county courthouses, but lawyers are able to bypass them in the course of official business by flashing a State Bar membership card.

Pat-down and vehicle searches are a step beyond metal detector pass-throughs, Smith said, and may amount to an unreasonable search if conducted without a specific cause for suspicion. A 1981 ruling from the West Virginia Supreme Court, for example, held that pat-down searches of attorneys entering a state prison are unconstitutional unless attorneys “have created some type of security or discipline problem with regard to the inmates.”

At least one attorney in Smith’s office refused to sign the consent to search document and opted out of a visit.

The DOC did not reply to questions from South Dakota Searchlight on the policy, its origins, its scope or application within various facilities, or the security needs it might address.

The policy’s inconsistent use has been a frustration for attorneys, said John Hinrichs, a former magistrate judge and public defender who now takes court appointments as a private attorney.

Hinrichs is a member of the public defense advisory board for Minnehaha County.

He hasn’t been asked to sign a search consent form himself and said he would decline to if asked, but he has fielded complaints from others who’ve been presented with the document.

Hinrichs has, however, experienced delays of an hour or longer awaiting an audience with clients – even after setting up appointments in advance.

For attorneys, time spent in the waiting area of a DOC facility is a total loss.

“We’re not allowed to bring electronics in, so it’s not as if I can sit there and work on something else in the meantime,” Hinrichs said. “Even if I could, there’s no public wi-fi, so it’s really dead time.”

As with the attorneys in Smith’s office, Hinrichs said he has to bill for the wait times, but said “I don’t relish sending a bill to Minnehaha County for time that I’m idle, through no fault of my own or my clients.”

Attorneys are also restricted to client visits during normal visiting hours, he said, and meetings often take place in the same shared visiting area used by friends and family.

“It makes things difficult, because the client has a right to confidential communications with his attorney,” he said.

County seeks resolution

The Minnehaha County Jail is located about a mile from the penitentiary grounds, and sees many of the same attorneys who visit the prison.

Jail Warden Mike Mattson said the downtown jail does conduct background checks for its regular visitors like attorneys, clergy and drug and alcohol counselors.

He declined to share the jail’s security or search policies, but said in an interview that searches beyond a general screening would require “probable cause.”

A good share of the jail population consists of people awaiting trial or sentencing, which means the jail tends to open its doors to attorneys multiple times a day. Court-appointed attorneys appear so often, he said, that “I honestly can’t remember the last time we had an issue” with anyone bringing a barred item into the facility.

As with the prison, video visits between attorneys and clients are available, he said. When attorneys need to meet clients face-to-face – a signature is required for a plea deal, for example – such meetings take place away from the general population. Visits are monitored by video for security, but audio of the attorney-client conversations isn’t collected.

Wait times are short and rare, he said.

“If there’s some sort of event going on, or just routine busyness, an attorney might have to wait three to five minutes,” Mattson said. “But that’s after they’re already up in the jail and on the floor waiting for the inmate to be pulled out.”

Commissioner Kippley, the public defender liaison, said he prefers the efficiency of the county jail system with regard to attorney access. Kippley, himself an attorney, said he hopes the DOC will work to address access and security issues at the penitentiary in a timely fashion.

“I’m making some contacts, looking for the right people to have the right conversations and hopefully reach an amicable solution,” he said.

This article originally appeared on Sioux Falls Argus Leader: SD defense lawyers decry wait times, pat-down searches at penitentiary