Saturday, September 15, 2007

Should counties record attorney-client jail calls?

Should prosecutors get to listen to inmate's calls from jail with their attorneys? It seems antithetical to the idea of attorney-client privilege, but some think it's okay, at least in Hunt, Collin, Denton, Rockwall, and other counties, according to the Dallas News ("Hunt county not alone in listening to inmate phone calls," Sept. 15).

Despite Williamson County DA John Bradley's adamant defense of the practice (he said jailed inmates have "no expectation of privacy"), I think most attorneys would agree with the lawyer who called that claim "crazy." And yet, apparently the practice is widespread, though thankfully not ubiquitous.

I can see a lot of problems with this. For starters, I wonder who such recordings are shared with? The Sheriff's Office runs the jail, so they're in the loop. Usually there's a vendor running the phone system who'd have access. They shared the information with prosecutors in the Hunt County case, but deputies could just as easily have acted independently based on information obtained through privileged conversation and claim it resulted from their investigation. Who would ever know?

For that matter, are prosecutors' calls to informants in the jail taped, and if so are those discoverable by the defense? I wouldn't think so, but then what's good for the goose is good for the gander. Maybe some uppity defense lawyer who finds themselves with the right set of facts needs to try to find out!

What do you think? Is it ethical for counties to record attorney-client jail calls, and have you ever heard of this aggressive practice elsewhere?

BLOGVERSATION: Simple Justice says that signs in the jail do not trump constitutional rights.

27 comments:

Roy said...

Should defense attorneys get to bug police and prosecutor offices and vehicles? Actually, this would be a good idea. Automation would be the ticket -- just automatically upload every bit of talk to a shared repository so that the public can monitor their public servants conducting the public's business in public.

I no longer trust the government doing anything in private.

jsn said...

Our jail has the capability of recording phone calls but they seldom do so and I would not be surprised if that is the norm for jails in general.

I would hope that an experienced defense attorney would be aware that the jails have that capability and act accordingly. It is possible that an inexperienced attorney might not know that their conversation with a client could be recorded. I can see how that type of information might be of great value in an investigation or in planning a prosecution but I wonder if a judge would allow it to be used in court.

Gritsforbreakfast said...

If they used it in an investigation they wouldn't have to use it in court, but IMO that should still constitute a violation of privilege - the whole idea seems filled with slippery, unaccountable slopes.

Don said...

I can't believe some think this is ok. What would constitute a violation of attorney-client privilege if not this? Maybe convicted criminals wouldn't have a reasonable expectation of privacy, but most people in county haven't been convicted. I think it's another example of the shredding of the constitution, particularly 4, 5, and 6 amendments.

Nurit said...

I am speechless and I would hope the attorneys are staying that way also when it comes to talking with inmates on the phone. There is no question that this is a violation of privileged communication. Of course, inmates also have their mail read before they receive it, a must-have to prevent contraband and other illegal activities. Some privileges are lost upon incarcerated, but not privilege.

Anonymous said...

Everyone is acting like it's being done secretly and to trap someone into something. What part of "your calls will be recorded" aren't they understanding? If they are in jail awaiting trial, and for arguments sake, we say that they still have the right to expect privacy in their situation because they are not yet "convicted"; if they are innocent of any wrong doing, why would they care if their calls are recorded?

A guilty person belongs in jail and if they know they're being recorded and talk about things they don't want others to know about anyway - they really aren't so smart. Which is perhaps what landed them in the situation they are in, in the first place.

So the short answer - I see nothing wrong with it.

Anonymous said...

We have rules in our society. If it is alright for the government to break or bend the rules then it is also alright for the citizens to do likewise. We have evolved into a society based on expediency in place of higher values! We were once an example for the rest of the world but we have fallen to the depths of a third world country. Situational ethics are the standard of the day! The moral decay of the United States is being lead by the elected officials and government employees who are supposed to work for the good of the people. Either you have a just and lawful operation of government or you don’t. There is no gray area! Lies and excuses are a main staple of government today along with hidden agendas. We are a nation lost in the lie! We are stumbling helplessly into the darkness of no return.

By - FTM

Anonymous said...

11:23 - Seems you would make it a crime to be stupid.

In that case, you are a criminal. You and everyone else in this country is entitled to the "due process of law". The bill of rights was created to protect the rights of the minority against unfair exercise of power in this democracy.

Your post is arrogant! Perhaps one day you will be denied your rights. I do hope you give some serious thought to that possibility.

Anonymous said...

McLennan County prosecutors just used a recorded jail call to impeach a defendant's brother.

http://www.wacotrib.com/news/content/news/stories/2007/09/14/09142007wacshootingtrial.html

The defendant got 55 years shortly thereafter.

Anonymous said...

Sorry, my link didn't take. Google "Derrick Grant Mclennan" and you'll find it among the first of the news stories.

Anonymous said...

I will go on record and say that I do not believe that we, prosecutors, should be privy to attorney-client communications. That being said I believe any other communications are fair game, particularly, as in our county, there are big signs that say your conversations may be recdorded.

Anonymous said...

Why would anyone think it's legal? Unless there's some reason to believe there's something illegal occurring between the parties, then give them their privacy, otherwise get a warrant.

Wouldn't a priest accepting confession in this situation be given privacy?

Anonymous said...

nurit, legal correspondence in Texas prisons is logged and opened in the presence of the inmate and shaken for any contraband. It is not read. Outgoing legal correspondence is sealed without being read.

jsn said...

In our jail the phone is in the commons area so anyone in the commons area can hear the inmates end of the conversation. Under those circumstances it is not very likely the inmate would say anything that would be useful to an investigator or a prosecutor unless they screwed up.

There is also a microphone in the cell block and if the noise level gets too high a light goes on in the control center and they can turn on the microphone and listen to what is going on and act accordingly. I suppose they could also use it to listen to a conversation between inmates but I don't think they do.

The idea of posting signs that say the conversations may be recorded is a good idea and I will suggest that to our sheriff.

Anonymous said...

When suspects are incarcerated without bail, their ability to communicate with anyone without being recorded is severely if not completely impaired.

While we have the right to refuse to incriminate or testify against ourselves under the 5th ammendment, the only way this works is if we never say a word.

Not everyone understands that the legal system is not "Perry Mason". The attorney client priviledge has effectively been eroded over the years to the point that there is no privacy.

Soooooo........if you are arrested, keep your mouth shut, no matter what!

Anonymous said...

10:21 - The Texas prison mailrooms rarely follow the rules. Especially when it suits their purpose not to.

Oops! I opened this outside of your presence by mistake. It happens all the time. Just because there is a rule does not mean prosecutors and other justice system authorities follow it.

Anonymous said...

2:44

How is recording phone conversations denying someone their due process?

The problem today is that everyone is so concerned about rights, they forget about the law.

It's nice to know you disagree with me, and can remain so civil.

/sarcasm

doran williams said...

The Rules:

1. The attorney-client confidential communication privilege applies to people in jail or prison (convicted or awaiting trial), and their attorneys.

2. Intercepting a telephonic communication between an attorney and her imprisoned client is a violation of that privilege. It may be a violation of federal law, also. (Chew on that, John.)

3. An attorney shoud never, never, never discuss the substance or tactics of a defense with her imprisoned client by telephone, or let her client talk about the facts of the case by telephone -- not with the attorney and certainly not with any other person. Because, stupid, there are authoritarian, anti-Constitutionalists -- like the law enforcement agencies mentioned in the original post and district attorneys like John Bradley -- who don't give a flip about such things and will tolerate, if not encourge, illegal interception of attorney/client communications.

4. If it is legal, or at least not illegal to intercept a telephone communication between an attorney and her jailed client, it would also be legal to use listening devices to intercept such communications when the attorney is meeting with the client in rooms at the jail or prison, or even in the courthouse. I suspect, but cannot say for sure, that even the Williamson County DA would agree that such interception is a no-no. It might even be a federal offense to intercept such conversations. I suspect, but cannot say for sure, that some law enforcement would say that it is ok to do so.

5. Law enforcement, and their adjuncts, auxillaries, and water carriers in the district and county attorneys' offices in Texas, should be expected always to be pushing the envelope on questions such as these. They tend to see the Bill of Rights as adopted by the Founding Brothers as impediments to punishing people and jailing people. It should not be surprising that the United States of America has the highest per capita incarceration rate of all major developed countries: After all, we have 51 governmental subdivisions, and many of the subdivisions of those subdivisions, dedicated to putting people in prison.

The Local Crank said...

"A guilty person belongs in jail"

Most people in jail are awaiting trial, haven't been found guilty of anything and are still presumed innocent. Unless you believe that the police only arrest guilty people...

jsn said...

Local Crank

Of the 5700 persons who were booked into our jail in a 300 day interval one was released after acquittal and a dozen were released because the charge was dismissed. Over 99% plead guilty, were convicted on a new charge or for contempt or were sent to prison on a probation/parole revocation.

The prevailing attitude is when we have time we will prove you are guilty and you will be a lot better off if you plea bargain. The ones who are in jail for more than three weeks are almost always convicted and sent to prison or convicted and sentenced to time served.

Some are released prior to conviction because they have been in jail longer than they would be if sentenced. It is hard to talk about presumption of innocence with a straight face when people serve their sentence prior to conviction.

Legal Beagle said...

What makes this practice the most deplorable is that almost all these jail phone monotoring systems are based upon numbers called. I know this because a client of mine, against my advice called his wife, sister and freind and discussed his case with them over the phone. During the supression motion hearing, it was learned that the system was able to pull up digitally recorded conversations according to number. The sheriff deputy just imputed several telephone number and had every call to the jail from those numbers.

In otherwords, to get calls from the client to the attorney, the sheriff or DA has to imput the attorneys number and thus retrieve those telephone calls. Thus getting the attorney - client calls are no accident and are just not caught up in a sweep. Also mny jails pre-recorded message says that calls will be recorded except for communications with attorney's.

Finally, the chiling thing about Bradley and the other DA' arguments okaying this practive, is that the say circular faulty logic could be used to record any attorney client communication. For instance, an ad seg inmate in most jails is not allowed face to face contact and must speek to everyone (attorneys included) over the in house phone system at the jail. Those meetings and conversations are recorded and thus it should be OK to violate privlege since the attorney should know they are being recorded. This is just an example how this is not a bad idea.

When it comes down to it, we need to elect officials in our district attorney and sheriff offices that see the constitution as a mandate and not just suggestive guidelines.

Anonymous said...

11:08 - You asked "what about the law". Don't you know that the "Bill of Rights" is the highest law of the land?

JSN at 10:16 - The current judicial system convicts innocent people. Innocent people are entitled to their rights under the law.

Everyone benefits when someone has the courage to stand up for their rights. I would much rather release 10 who are guilty than incarcerate one innocent soul.

Don't start with the bit about the murderer, sexual predator. Most innocent souls that are incarcerated have committed victimless crimes.

Anonymous said...

The Bill of Rights does not provide that an attorney/prisoner conversation cannot be recorded by the government. That being said the law does attorney client priviledge which without a wiretap order would/should prevent such calls from being monitored. Whether or not other calls are subject to monitoring is less clear.

Anonymous said...

"2. Intercepting a telephonic communication between an attorney and her imprisoned client is a violation of that privilege. It may be a violation of federal law, also. (Chew on that, John.)"

Well, I'm not sure what "violation of that privilege" means. After all, the privilege is enshrined in Evidence Rule 503, so it's really a rule that will allow one to keep confidential communications out of court.

It certainly isn't a special category of wiretap violation. And, as eveyone here seems to realize, it's perfectly okay to listen in on jailhouse phone conversations generally. The wiretap statute (and Texas' is about the same as the federal one) specifically exempts from its scope communications where the subject doesn't have an expectation of privacy.

That's not to say it's a good idea (or good policy) for jails to listen in on attorney conversations. It's just not illegal. Anyway, John Bradley points this out here:
http://tdcaa.infopop.net/2/OpenTopic?a=tpc&s=347098965&f=157098965&m=3711011551

Anonymous said...

Agree with above poster...what part of "Your telephone call is being recorded" don't they understand? Both sides of the conversation get this warning, so who is dumber or dumberer in discussing confidential matters, the attorney or the inmate?

Most stellar defense attorneys I know only communicate with their client face to face.

Doran, Doran, Doran...what did Bradley ever do to you? Why do you focus on him, when he is not at issue in this matter? This practice is being challenged in another jurisdiction.

I think you should step up to the plate and run against Bradley, Doran. Be a man. Put your money where your posts are...:)I bet you might even get at least 1% of the vote.

Maybe. On a good day, you might hit 2%.

Anonymous said...

Collin county listens. I had a feeling and purposely planted an idea in my conversation that there might be some helpful evidence behind my clients house. I was not surprised when my client's family informed me that some investigators were snooping around soon after. Too much of a coincidence? I think not.

Anonymous said...

The 8th Amendment guarantees a right to counsel, meaningful counsel. When the state eavesdrops on these conversations, the effectiveness of counsel is compromised and defeated. attorney client communications are privileged. if that means that big brother can listen any time it chooses, then the privilege is meaningless. We need to make the government and these zealous da's and cops follow the law. the truth is that they have less integrity than most of the folks they prosecute.