Longstanding hurdles keep attorneys from easily phoning clients in North Dakota prisons

Attorneys are frustrated about not being able to connect with clients held at North Dakota prisons. It’s a problem that's gone on for years, lawyers said.

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FARGO — When William Hart appeared via Zoom in Cass County District Court to address when he could potentially be released from prison, he told Judge Susan Bailey he hadn’t been able to connect with his attorney, Patrick O’Day.

Hart, who was sentenced to life in prison with the chance of parole for shooting and injuring a Fargo attorney in 1996 at a local YMCA, wrote in a letter to the court that he called O’Day several times and wrote multiple letters to the attorney but got no response. He said he wanted to fire O’Day and represent himself.

O’Day said during the June 13 hearing it was almost impossible to reach clients in prison. When the judge asked guards at the North Dakota State Penitentiary in Bismarck to set up a phone call between O’Day and Hart outside of court so they could discuss the case privately, the officers said they could not do that on short notice.

The difficulty of attorneys contacting clients in prison via phone is not a new problem in North Dakota, said Monty Mertz, who heads the public defender’s office in Fargo. Other attorneys The Forum spoke with also expressed their frustrations.

“That has been an issue as long as I can remember,” said Mertz, who's been a public defender since 2008. “If we're representing a person ... we need to communicate with them.”


Prison residents can call their attorneys with DOCR-issued tablets from their cells. But putting an attorney's call through to a prison resident on short notice or giving them access to a confidential call during a Zoom court hearing can be tricky, said Colby Braun, facility operations director for the North Dakota Department of Corrections and Rehabilitation.

Asked about what happened in Hart’s case, Braun said he preferred to talk about the issue in generalities and not about specific cases. O’Day did not return phone messages left by The Forum.

Braun acknowledged that the DOCR could work to improve access to attorneys and said the department is open to working with attorneys to find solutions. “We want to get this resolved,” he said.

What’s at stake is a client’s due process, said Bismarck criminal defense attorney Robert Quick. People in prison have rights like everyone else, he said.

“Communication is the absolute critical key to proper representation,” he said. “You can't properly represent someone if you can’t communicate with them.”

Client rights

Mertz’s office focuses on criminal trial cases, so it doesn’t often represent people who are in prison.

His office may continue to represent a client on appeal or for post-conviction matters. It also may work for a client who was sentenced to prison on a different matter but still has an open case, he added.

Mertz recalled a time when the prison would typically cooperate in getting his clients on the phone if they set up an appointment. A case manager would arrange for the client to speak with an attorney on the phone, he said.


Mertz said that changed at some point. He said he was told the prison didn’t want case managers to be in the “uncomfortable position” of listening to confidential conversations.

The U.S. Constitution says citizens have the right to an attorney, but it doesn’t say what communication methods a client must be allowed to use, said Justin Vinje, a criminal defense attorney in Bismarck.

“Within that right to legal counsel, what right to access legal counsel does that person have?” Vinje asked. “I don't know that there is any law that spells out exactly how easy it has to be for a person who's in jail to call their attorney.”

The law gives prisons the authority to decide conditions of confinement, said Mark Friese, a criminal defense attorney in Fargo. That includes access to counsel during court hearings.

“The (DOCR) has done a very good job of providing accommodations for private attorney consultation at its facilities, but apparently not so much during electronically recorded court hearings,” he said.

Prison staff will alert prison residents to give their attorneys a call if staff are contacted by lawyers, Braun said. Emergency calls are more difficult, he said.

“It’s not like in the movies where you see them in their cell all the time,” he said, noting that DOCR residents may be working or taking part in programming or recreation activities.

The North Dakota State Penitentiary in Bismarck.
Korrie Wenzel / Forum News Service


Why it's so difficult

Some prisons are better than others in setting up calls, but that involves scheduling, said Kiara Kraus-Parr, a Grand Forks attorney who specializes in criminal defense and appellate cases brought before the North Dakota Supreme Court. Quick, who was a full-time public defender before he opened his firm in 2013, agreed.

“It all depends on the facility,” Quick said. “Some facilities are really great, and they're easy. It's easy to get in touch with your clients. There's others that have different kinds of protocols or guidelines.”

Jails, which typically hold people awaiting trial or who have been sentenced to less than a year behind bars, have been “incredibly accommodating,” he said.

Some prisons only allow access through a paid phone service set up by a third-party vendor if an attorney wants to call clients, Kraus-Parr said.

“If the attorney or their office doesn’t accept charges or doesn’t have an account set up with the third-party vendor, it is difficult, if not impossible, to have a phone conversation with the client,” she said. “The incarcerated person sometimes will call collect, but not all offices will accept the charges or aren’t set up to do so from that particular facility.”

DOCR residents are allowed tablets to use as phones, Braun said. The reason behind using third-party vendors is to make sure prisons are not monitoring confidential conversations, he said.

The prison had to set up secure rooms for residents who had hearings via Zoom during the coronavirus pandemic, Braun said. That means taking residents away from their cells and tablets, he noted.

Before the pandemic, there were only several hearings a month for which the prison had to connect residents to video conferences, Braun said. Now there are multiple hearings a week, he said.

To make a separate call during a hearing, a guard would have to take the resident out of the secure room, escort them to their cell that may not be nearby and get them on their tablet, Braun said.

“I'm not sure what the solution is, or how to get around that,” Braun said.

A guard stands by as residents at the North Dakota State Penitentiary walk between cell units in Bismarck in this file photo.
Mike McCleary / Bismarck Tribune

Mertz called the phone service predatory, noting that clients or their families typically have to pay money to make calls. Those calls can cost several dollars a minute.

“It’s ridiculously expensive,” he said.

Clients in prison who can’t afford attorneys likely can’t afford those calls, Quick said. If their attorney doesn’t accept collect calls, it makes the situation difficult, he added.

Mertz has discussed buying phone cards for clients, but the state Commission on Legal Counsel for Indigents, which oversees his office, advised against the move since clients could use the cards to call anyone, he said.

Prison residents and their attorneys can communicate through mail, Braun said. However, some matters may have deadlines, and those conversations cannot wait the length of time it takes to deliver letters, Mertz noted.

Prisons are more accommodating for in-person visits, but asking an attorney to drive across the state for a 10-minute conversation is inefficient, Mertz said. The state would have to cover his travel expenses.

No right to appear for civil matters

It’s not just criminal cases that are a concern. Clients in prison do not have a right to appear for civil matters, such as child custody or post-conviction hearings, Kraus-Parr said.

“I do a lot of juvenile work,” said Kyle Weinberger, an attorney in Mandan, North Dakota. “I've had extreme difficulties with trying to coordinate (a prison’s) schedule so that they can bring people and even responses such as that they don’t believe that they need to attend the hearing. They seem to make a judgment call on a lot of these.”

Weinberger said he understood the prison system may have staffing challenges. He has had luck leaving messages that ask for a return call from his clients. He said coordinating in-person meetings has been “extremely difficult.”

The hurdles delay the civil court process and make it hard for a client to have their voice heard, he said.

Parents should have a right to appear in court when it comes to matters regarding their children, Weinberger said. When parents are in prison, they can’t do that without help from the DOCR.

“The hard part is, from my perspective, there's not much more important matters than in court proceedings involving children,” he said.

Quick said he didn’t want to speak ill of all correctional facilities since some are helpful, but not being able to communicate with clients is unacceptable.

“It's another hurdle toward an already difficult situation,” Quick said.

April Baumgarten joined The Forum in February 2019 as an investigative reporter. She grew up on a ranch 10 miles southeast of Belfield, N.D., where her family raises Hereford cattle. She double majored in communications and history/political science at the University of Jamestown, N.D.
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