Tuesday, March 20, 2012

Beaumont Enterprise argues both sides of recording confidential attorney-client communications in jail

There's an odd editorial in the Beaumont Enterprise about the Galveston County Jail ending its policy of taping inmate-attorney phone conversations. According to the Houston Chronicle, "Defense attorneys say the practice is common statewide." The Enterprise opines against the practice, favoring protection of client confidentiality, etc.. They close by pointing out that "Prosecutors wouldn't want defendants listening to their phone conversations. That right should be shared by both sides."

Then, strangely, in an argument as detailed than their own editorial judgment, they add:
ANOTHER VIEW: Continue for safety

Jail inmates need to remember an important reality: They simply do not have many of the same rights that other people enjoy. Most jails have a blanket policy of tape-recording all telephone conversations for a good reason: safety.

Jails are hard enough to run as it is. They are filled with many inmates who are dangerous or violent. Their interaction with outsiders has to be closely monitored, even with attorneys.

Prosecutors do not eavesdrop on these recorded conversations to learn tidbits they can use in court. The attorney-client conversations are simply included in the overall taping that goes on each day - again, for safety.

If this tradition is changed, what could prevent inmates from arguing that they should be able to talk to family members without being recorded? That could lead to all kinds of problems, such as inmates planning additional crimes.

This practice has not been a problem in our criminal justice system. It doesn't need fixing.
Grits finds this editorial construction fascinating: A publication basically arguing with itself, and giving its unnamed, theoretical opposition the last word. Is this a minority opinion from an editorial board member? Views expressed privately by the DA or law enforcement? Something somebody read on the Interwebs? Who knows? And what an argument, elevating this practice to a "tradition," no less!

I especially love the phony, red-herring question, "what could prevent inmates from arguing that they should be able to talk to family members without being recorded?' Uh ... perhaps the fact that attorneys engage in privileged communications with their clients while they're incarcerated and family members do not?

Grits doesn't doubt that recording attorney-client conversations in jail is common, and I wonder how often prosecutors or police sneak a listen, not for evidence to use in court but for leads, potential corroboration, etc.? Especially in high-profile cases where there's pressure to convict, but even under more workaday circumstances, the temptation to do so could be great without managerial checks, logs, etc. restricting who can access the data for what reason.


Ryan Paige said...

Just like we trust prosecutors to always follow the law and turn over potentially exculpatory evidence, we should trust jailers to not share privileged conversations with police and prosecutors.

And yet, nearly every day, we get another case in which our trust in prosecutors to not break the law was misplaced. So why continued to give them another avenue they can use to break the law and our trust?

Hook Em Horns said...

It is precisely for this reason that I do not discuss case facts with a client who is in jail via telephone.

Anonymous said...

Maybe the defense attorneys should start doing motions to recuse the DA's office on all their clients in jail. Argue that, due to the taping, its likely that confidential information may have been shared with the prosecution violating the defendants 5th amendment rights. Therefore, a special prosecutor who has not had any access to such information should be appointed. I bet a few of these motions would end the practice pretty quickly.

Lee said...

Attorney client privelige should come first. It is however the duty of the attorney to warn their client of the safe and unsafe means of communication. Best to mee with your lawyer in person and keep your voice low. THE STATE IS LYING SCUM AND UNDER NO CIRCUMSTANCES TO BE TRUSTED.

fergusk66 said...

ibibI busted the Hunt County DA on this. I came into the case pro-bono to help the attorney whose calls were recorded. I got the Court to find a violation of the client's 6th Amendment rights and the DA's office ended up recusing themselves. The court appointed a special prosecutor. Then we went through a year of making sure the file was "scrubbed" of any possible taint. I argued the violation was so flagrant the indictment should be dismissed, but the Court didn't go along with me on that.

The Homeless Cowboy said...

Im sorry but any inmate who does not know they are being recorded on the telephone is a moron, it is common knowledge and has been for quite some time. Any attorney who does not forewarn his clients not to talk about sensitive issues over the jail phone is in collusion with the prosecution.

Anonymous said...

This issue came up in Victoria in June 2010 when a new telelphone system was installed. See http://www.victoriaadvocate.com/news/2010/jun/05/gs_jail_recordings_060610_98470/?news

My favorite lines in the article:
"Beyond the paper trail provided by the audit, why should anyone believe the sheriff's office is not listening to calls and passing tips to prosecutors?"

"That's called breaking the law," Terry Simons, O'Connor's chief deputy, said. "The same thing that stops me from listening is the same thing that stops me from planting evidence: integrity, honesty."

Is that good stuff, or what?

sunray's wench said...

I'm concerned that the Editorial seems to think that the same old sweeping generalisations make good journalism. I would be interested to know the statistical breakdown of the crimes people in the jail have been charged with. I would put money on the majority of them being for drink and drug-related possession, hot cheques and non-payment of fines, rather than the jail being "full of dangerous and violent" people.

Thomas R. Griffith said...

Hey Grits & all, as a real life (VOTS) victim of the system that would have greatly benifitted from the utilization of such technology, I advocate for the mandatory recording, filing & preservation of 'everything'. And that it 'all' be made available to both sides & the jury letting the chips land where they fall.

I mean every single transaction from the very moment of arrest all the way through the; release, plea bargain or jury verdict (including jury dliberations). As it is now, (guilty or not) the majority ends up being disposed of via 'Play-Bargain' games. Defense attorneys / lawyers 'don't' investigate (unless you frigin tell them to and pay up) which is why they don't give a rats ass about recordings.

Divorce Estate/Will specialists are allowed to; dabble in criminal defense, visit felony clients for 15 mins., take notes and leave. Show up at trial 4 or 5 months later, plea bargain at lunch recess and walk away with little or no consequences. Why? Because the certified case file will 'not' indicate that the defense wasn't qualified, that no investiation was performed and the plea bargain was actually conducted in chambers but documented as in Open Court. Thanks. *Now that's how to argue with ones self.

Thomas R. Griffith said...

Hey Hook Em, that's all goood & all but since some inmates can't afford, are not in possession of pencil & paper, or allowed to for safety -

1-Do you make a copy of your notes available to the client?
2-How many mins. do you allocate for the 1st visit? and do you really come back for a 2nd?

*Asking due to the dabbler (wanna be CDL) that I had via elderly poor parents going off a referal; visitng only once, took notes and he was gone. On the day of trial, said why didn't you tell me you were on probation? (BTW, this was his third question out of seven). Take the plea bargain, despite the jury verdict guilty or not, you have to go to prison just for being arrested while on probation. I know, WTF? Thanks.