by David Reutter & Matt Clarke

In December 2007, it was reported that an investigator at Florida’s Charlotte County Jail was caught listening to telephone conversations between a prisoner and his attorney. As a result, the investigator, Kenneth Hill, was reprimanded and placed on road patrol.

Hill was investigating charges of introduction of contraband and attempt to defraud involving jail prisoner David Price. In all, Hill monitored five phone calls between Price and his lawyer, Michael Powell, in an attempt to learn about a possible drug exchange.

In a deposition taken by Powell, Hill admitted he had listened to the conversations. Later, however, Hill wrote a memo to the State Attorney’s office recanting what he said in his deposition. When internal affairs investigators questioned him, Hill stated he “did not listen to the conversations to gain an upper hand in court, for a loophole in the defense, or with any devious intent.”

When asked whether an attorney-client phone conversation should be monitored, Hill said, “That is a good question! If the attorney wants to speak in private, they should not be on a recorded line. You can’t know all of that.”

The Charlotte County Sheriff’s Office has since implemented a policy that allows lawyers to put their phone numbers on a do-not-monitor list. Further, jail employees are required to discontinue monitoring if they realize a prisoner is having a conversation with an attorney.

PLN reported a similar incident at a Florida jail in 2006, when Broward County officials recorded two weeks of privileged conversations between prisoners and their attorneys. A resulting lawsuit was settled in February 2008 for “a few thousand dollars,” according to one of the lawyers involved in the case. See: Sawchuck v. Jenne, U.S.D.C. SD Fla., Case No. 0:06-cv-61182-KAM. [PLN, June 2007, p.12].

Attorney-client phone snooping isn’t limited to Florida jails. In June 2008, the Sheriff’s Department in San Diego County, California was found to be using a system that recorded all jail phone calls, including those between prisoners and their counsel. Angry defense lawyers noted that prosecutors had access to the improperly recorded attorney-client calls.
Indeed, Jim McMahon, with the Alternate Public Defender’s office, said phone conversations with his incarcerated client were included on a disc turned over by prosecutors as part of discovery in the case. “I’m not at all comfortable with the DA being supplied with confidential, privileged phone calls with my client,” he said.

The Sheriff’s Department claimed the attorney calls had been recorded due to an “inadvertent glitch” in the phone system, according to the Union Tribune. The system was not supposed to record calls placed to phone numbers in an attorney database, but the database was severely deficient – it did not include all attorneys’ numbers nor their cell phones or direct lines. A California state law expressly prohibits eavesdropping on attorney-client calls.

Further, the practice of Hunt County, Texas prosecutors obtaining recorded phone calls from jail prisoners – including attorney-client calls – has come under fire. Defense attorneys in the capital murder trial of Bradon Dale Woodruff filed pre-trial motions concerning the known use of recorded attorney-client calls by Hunt County prosecutors in prior criminal cases involving defendants Adam Kelly Ward and Abigail Louann Whytus.

Attorney Dennis Davis, who represented Ward and Whytus, was surprised when he received recordings of jail phone calls from the prosecutor in response to discovery requests. The recordings included conversations with attorneys, family members and an expert witness on the issue of Ward’s competency. “They basically assassinated his character with those [phone call] outtakes,” said Davis.

That was just fine according to some Texas prosecutors. “Certainly, there is attorney-client privilege, and you can waive that. Once you’re put on notice that this is being recorded, then you have waived that right,” stated Rockwall County District Attorney Ray Sumrow. “I don’t see a legal or ethical problem, assuming that they have been notified.” However, Sumrow noted he could not recall his office ever requesting jail phone recordings between a prisoner and his attorney.

Hunt County prosecutor Noble Walker defended his office’s actions in court.

“When you pick up the dang phone, it tells you that you are subject to being recorded,” he stated, adding that the issue is whether prisoners have an expectation of privacy in the phone calls.

“All the law that I’m familiar with says it’s unlawful and unethical to record attorney-client communication,” countered Dallas defense lawyer Barry Sorrels.

Other Texas counties, including Dallas, Denton, Collin and Rockwall, have acknowledged recording attorney-client phone calls at their jails. Dallas County officials admitted they sometimes send the recordings to prosecutors, while Denton, Collin and Rockwall County said they randomly monitor the calls.

State District Judge Richard A. Beacom, Jr. denied a defense motion to dismiss the murder charge against Woodruff due to the improper monitoring of his attorney-client conversations; however, he ruled on Sept. 18, 2007 that any evidence obtained from the phone calls could not be used at trial.

“Although the Court does not believe that the Office of the Hunt County District Attorney acted with malice or without some case authority to support their actions, this Court believes that the practice of the State listening to a defendant’s telephone conversations with his attorney is a violation of the 6th Amendment,” Judge Beacom held.

Sources: Sun-Herald, San Diego Union-Tribune, Dallas Morning News

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