- Associated Press - Tuesday, March 12, 2019

PHOENIX (AP) - A judge has ruled that the sheriff’s office in metro Phoenix violated the constitutional rights of an inmate accused in a terrorism plot by opening his privileged legal mail while he was in jail and sharing three letters with other law enforcement authorities.

Superior Court Judge Daniella Viola said in a ruling Friday that the Maricopa County Sheriff’s Office interfered with Thomas Orville Bastian’s right to counsel by opening correspondence between Bastian and lawyers who are advising him.

The judge said two such letters were sent to the Arizona Attorney General’s Office, which is prosecuting Bastian, and another to the FBI.

Viola said the sheriff’s jail intelligence unit has “made it untenable for defendant to communicate with his counsel via legal mail without fear that the mail is either being read, shared, tampered with, or otherwise maintained for later use.”

The judge also concluded that three jail officers weren’t truthful when testifying about how Bastian’s legal mail was handled.

Even so, the judge declined Bastian’s request to dismiss the terrorism case and instead ordered the appointment of an attorney or retired judge to address any further issues with Bastian’s mail.

The sheriff’s office said in a statement Tuesday that it was investigating the situation with Bastian’s mail and will take appropriate action when it’s finished.

“We continue to work to ensure safety while respecting rights,” the statement said. “The mail delivered to our jails is a primary tool for transferring contraband to inmates. Our detention officers are challenged with these conflicting dynamics every day and work to navigate them lawfully.”

Bastian has pleaded not guilty to terrorism and other charges in what authorities say was a foiled 2016 plot to make an explosive device that would be set off in the prison where he was serving a life sentence for a murder conviction in a 2007 killing. Authorities say Bastian converted to the Muslim faith while in prison and became radicalized.

His wife, Michelle Bastian, was accused of mailing bomb-making instructions and promotional materials from terrorist groups to her husband while he was in prison. She is serving an eight-year prison sentence for her guilty pleas to terrorism and other charges.

Authorities say the promotional materials from al-Qaida and the Islamic State made it past prison security because they were labeled “legal mail.”

Thomas Bastian is representing himself in the case, but he has been assigned lawyers who are advising him on how to defend himself.

Stephen M. Johnson, one of those advisory attorneys, said the Arizona Attorney General’s Office had a subpoena to get Bastian’s mail that didn’t pertain to legal matters and that some of Bastian’s legal papers were opened by sheriff’s jail officers as part of that process.

The agency’s policies say it doesn’t read inmates’ legal mail and doesn’t open such mail outside of the presence of the inmates.

Viola said at least 17 pieces of Bastian’s legal mail were opened outside of his presence. “The unwritten protocol for a period of time was that all of defendant’s mail, including unsealed legal mail would be delivered directly to jail intelligence,” Viola wrote.

The judge pointed out, for instance, that four pieces of legal mail from Bastian to Johnson were opened and resealed by someone at the sheriff’s office and that two pieces of mail from Bastian to other attorneys were copied by jail intelligence and handed over to the Attorney General’s Office.

Viola said an FBI agent who reviewed a packet of Bastian’s mail had realized that a letter from Bastian to attorneys was included within those materials. The agent put the letter in the shredder, but didn’t notify anyone of the issue, the judge wrote.

While the FBI agent didn’t violate Bastian’s rights, she did nothing to correct the problem, Viola said.

The FBI declined on Tuesday to comment on the ruling.

Viola said there was no evidence to suggest that the Attorney General’s Office sought information related to Bastian’s legal mail or that the prosecutorial agency had any role in opening his legal mail.

The judge also concluded that prosecutors received no information about Bastian’s legal strategy that would prejudice him.


Follow Jacques Billeaud at twitter.com/jacquesbilleaud.

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