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Call Your Attorney from Jail, Go to Prison

by John E. Dannenberg

Jail prisoners in California, Florida, Michigan and Texas have unknowingly had their phone calls to defense attorneys secretly recorded and handed over to prosecutors. The recordings surfaced before trial, when prosecutors were required to divulge all the evidence they possessed to the prisoners’ lawyers.

Highly indignant San Diego defense attorney Jim McMahon, whose calls with a client were recorded, complained, “We aren’t talking about cursory stuff [like] what kind of clothes to wear. We were talking trial strategy.”

“There’s no question that these calls are privileged, and we rely on that because the criminal justice system would come to a screeching halt if we had to drive to the jail every time we had to talk to our clients,” he added.

After McMahon’s complaint, San Diego jail staff temporarily suspended the phone recording system to allow the addition of “safeguards,” which consisted of software to automatically stop taping calls made to pre-approved attorney phone numbers.

The system was already using a database of 5,000 phone numbers for local lawyers, but it had serious deficiencies. “We thought we had a better database,” said Sanford Toyen, a legal advisor to the county. The jail’s phone system was originally provided by AT&T but is now operated by Public Communications Services Corp. (PCS). PCS provides phone systems at more than 100 prisons and jails nationwide.

Breaches of jail prisoners’ attorney-client phone calls are not only blatantly unconstitutional, they are also a felony in California that carries penalties of up to $5,000 per incident. Nonetheless, “privileged” calls to attorneys, doctors, psychologists and clergy have been recorded in Alameda, Santa Clara and Riverside County jails in California, plus facilities in Michigan, Minnesota, Texas and Broward County, Florida over the past several years. [See: PLN, April 2009, p.48; Aug. 2008, p.32].

Such violations are challengeable even if discovered after the fact. In 2006, gun charges against a defendant were dropped after a prosecutor admitted he had listened to only 35 seconds of a recorded attorney-client call made at an Oakland, California jail. In Broward County, the sheriff settled a class-action suit that was filed after two prisoners learned their supposedly “privileged” attorney calls were not so privileged after all. [See: PLN, Aug. 2008, p.32; June 2007, p.12].

Adding attorney phone numbers to a jail’s privileged call database is weak medicine, as most attorneys have multiple extensions and cell phone numbers. Further, little effort has been made to protect privileged calls from jail prisoners to doctors or clergy; such calls are also supposed to be confidential under California law.

San Diego prosecutors filed affidavits swearing they had no idea that phone calls with defense counsel had been taped. But they had the tapes, and admittedly handed them over to McMahon before trial. Recorded phone conversations from the San Diego jail were stored in electronic format on a server that was easily accessible by prosecutors from their office computers.

The company that operates the jail’s phone system was quick to shift the blame from itself and jail staff to defense attorneys. “The first thing you hear when you pick up the phone is that your call [from a prisoner] can be recorded,” said Rudy Zaragoza, a spokesman for PCS. “If you didn’t register your phone number with the [pre-approved attorney] list, then you didn’t do your job. The onus is on you.”

To be safe, prisoners should demand that their attorneys – including public defenders – verify that privileged phone calls are not being recorded or monitored by jail staff. Otherwise, by using the jail’s phone system to discuss their criminal cases with defense counsel, prisoners may unwittingly share information, evidence or trial strategy that guarantees their conviction followed by a bus ride to prison.

Sources: Associated Press, San Diego Union-Tribune

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