by Douglas Ankney

As previously reported in PLN, the constitutional rights of prisoners at the Leavenworth Detention Center (LDC) in Kansas were violated by CoreCivic, the private operator of the facility for the federal Bureau of Prisons (BOP), when the company not only recorded phone calls between prisoners and their attorneys but also shared the tapes with federal prosecutors. [See: PLN, May 2017, p.36; Oct. 2016, p.44].

The Kansas Federal Public Defenders (KFPD) office was already in litigation with LDC over 227 recorded attorney calls discovered in 2016 by David Cohen, a special master in the case appointed by U.S. District Court Judge Julie Robinson. In September 2018, another federal judge, Stephen Bough, granted class-action status in a lawsuit filed by defense attorneys David Johnson and Adam Crane, who learned that the number of phone calls illegally recorded between 2011 and 2013 was actually at least 1,338. 

The complaint names as defendants both CoreCivic and Securus Technologies, Inc., the company that operates the facility’s phone system. The government has admitted in the KFPD case that prosecutors listened to the originally-reported 227 calls. That admission led to the early release of prisoner Michelle Reulet, and KFPD has asked for the release of 67 other prisoners, with plans to seek the release of 150 more due to the secretly recorded conversations with attorneys.

The Sixth Amendment guarantees defendants a right to counsel, and the U.S. Supreme Court has held that government interference in this relationship constitutes a violation of that right. See: United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir. 1973) (“The essence of the Sixth Amendment right is ... privacy of communication with counsel”), cert. denied.

In California, the Orange County Sheriff’s Department and its phone contractor, Global Tel*Link (GTL), knew about the unconstitutional recording of phone calls from jail prisoners to their attorneys and tried to cover it up, according to a lawsuit filed by Assistant Public Defender Scott Sanders. 

In a July 2018 letter to Sheriff Sandra Hutchens, GTL cited “human error” and a “software glitch” when admitting to the unlawful recording of 1,079 calls to attorneys from January 2015 through July 2018. At least 13 law enforcement officers accessed 58 of those calls on 87 occasions. But Sanders argued the actual number of recorded phone calls was likely “in the hundreds of thousands” based on the volume of calls his office received daily.

In July 2016, the Public Defender’s main phone line was also recorded for two weeks, alleged defense attorney Joel Garson, who is seeking dismissal of attempted murder charges against one of his clients, Joshua Waring, after Waring’s calls were recorded in spite of a court order granting him unmonitored phone privileges. “Hundreds” of calls were recorded during those two weeks, according to Garson, and 10 were accessed by jail deputies.

“I don’t know how many lawyers in Orange County are going to be in the same boat – there’s going to be thousands of recorded attorney-client calls, hundreds of which have been accessed over the years,” said Garson, whose 29-year-old client is the son of “Real Housewives of Orange County” actress Lori Peterson.

Like Garson, Orange County public defender Sharon Petrosino expressed doubt that the “glitch” had happened just once. “At some point, they knew they were recording attorney-client conversations and not only kept doing it but compounded it by sharing that with other agencies,” he said.

“The law has been clear for decades that calls between prisoners and their lawyers are confidential and may not be listened to or recorded,” noted David C. Fathi, director of the ACLU’s National Prison Project. “This kind of unlawful eavesdropping occurs with alarming frequency,” he added. “Whether it’s inadvertent or intentional, prisons and jails need to have robust protections in place to ensure that this kind of snooping doesn’t happen.”

In Louisiana, calls placed from the New Orleans Parish Prison play a message warning that the call is subject to recording and monitoring. Ken Daley, spokesman for the local district attorney’s office, refused to state how often prosecutors listen to prisoners’ calls to their lawyers but said, “Any call that is on that monitoring and recording system is basically fair game.” 

State judges have held that by continuing the call after hearing the warning message, defendants are waiving their Sixth Amendment rights and their ensuing conversations – even those with their attorneys – are no longer privileged. But a defendant held in jail cannot leave to meet with his or her lawyer, who is often a public defender with a caseload too large to permit in-person meetings.

In one case, a prisoner reportedly told his attorney during a phone call that he had just gone through detox. Prosecutors used that recorded statement as “critical evidence” to prove a needle the prisoner was carrying when he was arrested was “drug paraphernalia.”

In another case, attorney Nandi Campbell said her client told her over the phone the maximum sentence he was willing to accept in a plea bargain. When she suggested a shorter sentence during plea negotiations, the prosecutor cited the number her client had mentioned.

“The real problem is that people who are presumed innocent – but held in jail – are effectively stripped of all privacy,” said former public defender Peter Santina, now a defense attorney in Oakland, California. “The denial of the right to a confidential legal consultation is only one symptom of this dehumanization. For those that the state insists on incarcerating, the state should still allow for some amount of privacy and dignity.”

“Even if this is only happening in a few jurisdictions, it can have a ripple effect that undermines the administration of justice anywhere defendants have to put their faith in the system to allow confidential communications,” said another former public defender, Thomas Frampton, who is now a lecturer at Harvard Law School.

“With each new story like this, I’m beginning to wonder whether it’s not much more widespread than we’ve all assumed,” he added.

According to a survey of 47 cities by the nonprofit group Court Watch NOLA, at least eight city jails record calls from prisoners to their attorneys: in Annapolis, Maryland; Boston, Massachusetts; Columbia, South Carolina; Concord, New Hampshire; Frankfort, Kentucky; Minneapolis, Minnesota; Salt Lake City, Utah and Tulsa, Oklahoma.

In Louisville, Kentucky, the public defender’s office discovered in 2014 that calls were being recorded between lawyers and their clients held by the Louisville Metropolitan Corrections Department, known as Metro Corrections. The jail had a separate phone line for attorney calls as well as a registry of attorney phone numbers, but “it was not well publicized that lawyers could opt out of monitoring,” admitted Steve Durham, a spokesman for Metro Corrections. 

Since then hundreds of attorneys have registered their numbers, Durham added. But out-of-town lawyers not familiar with the system “just assumed all calls are protected when they are between a defendant and a lawyer,” noted Eric Eckes, a Cincinnati attorney.

Eckes and another out-of-town lawyer, Gregory Coulson of Lexington, represent James Mallory, who was being held by Metro Corrections awaiting trial for a 2012 fatal shooting during a home invasion. When they discovered the violation of attorney-client privilege, they filed a motion in February 2019 asking Jefferson Circuit Court Judge Susan Shultz Gibson to order the jail to hire an independent investigator to review call logs and determine the “extent of the breach into privileged confidential communication.”

“We can’t be sure what’s being listened to and what’s not listened to,” said Coulson, who added that as a result he and Eckes had been unable to speak with their client for weeks.

“I don’t think we heard anything you would be concerned about,” responded Assistant Commonwealth’s Attorney Dorislee Gilbert, cryptically.

Her boss, Jefferson County Commonwealth’s attorney Tom Wine, declared that his prosecutors have an “ethical obligation” to stop listening to recorded calls from jail when they realize a defendant is speaking with his lawyer. Durham said hearing the warning message advising the call was being recorded should prompt an attorney to “call the facility and ask if there was a way to have a confidential communication.”

Judge Gibson stated that while she could “issue most any sort of order” to Metro Corrections in regard to Mallory’s case, she could not examine the problem “as it relates to the greater issue globally, how it impacts other defendants or how the system may have flaws.”

Melanie Lowe, general counsel for the Kentucky Department of Public Advocacy, began a review of jail call recording practices in all 120 counties in the state in November 2018.

“I’m afraid of how widespread this could be,” she said. “We unfortunately believe this is a statewide problem.”

In fact, the problem is national in scope. 

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Sources: apnews.com, kansascity.com, kcur.org, nytimes.com, voiceofoc.org, wdrb.com, Huffington Post

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