A group of Austin defense lawyers and prisoners is suing the top law enforcement agencies in Travis County, alleging the private Dallas firm hired to tape inmate visits at county jails is illegally capturing their conversations with attorneys and turning over the recordings to prosecutors.Named in the suit were the Sheriff, the vendor Securus Technologies, and the district and county attorneys offices.
The Austin Lawyers Guild, the Prison Justice League and several independent defense attorneys are seeking that a federal judge order authorities to stop the practice, which they call “unconstitutional eavesdropping and an invasion of attorney-client communication,” according to the lawsuit filed Tuesday in a U.S. district court in Austin. They say they also want the sheriff’s office and Securus Technology Inc. to destroy all the copies of such phone and jail calls already in existence, which could number in the thousands.
Both parties claim visits between defendants and their legal counsel are secure, completely confidential and not recorded, as protected by attorney-client privilege, the lawsuit states. But prosecutors at both the district attorney’s office and the county attorney’s office have procured copies of the private conversations, some of which have been disclosed to defense lawyers among discovery materials, according to the court records.
Judges say the recordings are automatically deemed inadmissible as evidence in court, but the lawsuit alleges some prosecutors are using them to prepare their cases — sometimes to their tactical advantage without admitting they obtained or listened to them.The Sheriff and DA say the recorded attorney client conversations were mistakes, the result of deputies failing to check the appropriate boxes on computerized forms. But those mechanisms are internal to the Sheriff and there's no mechanism for defense counsel to ascertain whether their conversations were recorded or shared with prosecutors unless the state later hands them over, by which time any strategic damage has been done. Said Austin Criminal Defense Lawyers Association president Bradley Hargis, “Basically, we just have to trust the sheriff and prosecutors not to listen to these calls but we have no way to verify they won’t.”
Similar allegations were lodged against Securus two years ago in Alaska. In Massachussetts, evidence from attorney-client phone calls recorded by Securus was suppressed in a 2006 criminal case. In 2008, NBC News reported that, "In the past two years, privileged conversations between inmates and lawyers have been recorded in Alameda, Santa Clara and Riverside counties in California, as well as Broward County, Fla.; Lansing, Mich.; and Dallas," as well as San Diego, CA.
Since all these were alleged accidents, according to Securus, which in each case promised to implement procedures to keep it from happening again, the assurances that this practice will definitively stop ring somewhat hollow. If nothing else, Travis County should begin providing attorneys with a comprehensive list of calls to and from their client that were monitored or recorded. "Trust us, we're the government" isn't a good enough response given that recorded attorney conversations have already turned up in prosecutors' files.
MORE: From the Courthouse News Service, and see earlier coverage from the Austin Monitor. Here's a copy of the complaint filed yesterday in federal court.