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Local defense lawyers worried about recorded jailhouse conversations

By Gabe Semenza
June 5, 2010 at 1:05 a.m.

nas/011507/t_michael_oconnor_012007Victoria County Sheriff T. Michael O'Connor

WHAT'S NEXT?

The Victoria County Sheriff's Office said any concerned defense lawyer can request audits of recorded phone calls to learn if an investigator listened to attorney-client talks. A handful of local lawyers requested audit findings via letter. But because this information is not public, defense lawyers must file for the audits in court using a discovery motion, said Chief Deputy Terry Simons.

Some defense lawyers are worried because conversations with inmate clients were recorded during visits to the Victoria County Jail.

The defense lawyers wonder if those so-called privileged conversations will be used for investigations or shared with prosecutors.

Victoria County Sheriff T. Michael O'Connor said no - although he points to case law that gives jailers the legal right to record such talks.

Some attorney-client meetings were recorded, O'Connor said, but inadvertently.

Concerns about the recordings prompted a meeting of the county's top law enforcement leaders.

Despite the discussion, questions remain about a gray area in the law and just how many attorney-client conversations investigators listened to.

'THAT CAN'T HAPPEN'

The Victoria County Jail's telephone system is used, in part, to record inmate conversations. Jailers record conversations inmates have with people on the outside, as well as in-person visits with friends and family.

Courts have long ruled jails can record such conversations.

The recording system, used by jails across the country, is a security measure to monitor threats, escape attempts and crime, which is often organized and executed from the inside, law enforcement said.

Before January, the local jail's system was old and inefficient. If an investigator received a tip about an inmate's conversation, attempts to locate the talk among volumes of un-catalogued audio - and to determine whose voices were recorded - were often futile at best.

"That can't happen," O'Connor said. "The old recording system was worthless."

An independent advisory board of directors - of which Tom Henley is a member - sought and awarded in December a contract with a new phone systems vendor.

O'Connor asked the group for a system that protects inmates and lawyers, Henley said.

The new system tracks conversations by date, time and inmate - and can identify a prisoner via voice recognition and pin number, which is entered before a discussion begins.

The system, set by default to automatically record all conversations, went live in January.

"When I granted this system to come in, I specifically said - although we have a right to do otherwise - not to record lawyer-client conversations," O'Connor said.

When a lawyer visited a client in jail, jailers were to override the default record setting with a pin number that turns it off.

About a month ago, however, Lt. Tom Copeland reviewed recorded jail conversations as part of an investigation. He stumbled into a discussion between an inmate and someone who works for a lawyer, O'Connor said.

Copeland stopped the tape, alerted jailers, a judge, defense attorneys and prosecutors, the sheriff said.

Jailers can't say how the conversation was recorded. Maybe a jailer forgot to enter the override code. Or maybe an inmate and lawyer hung up, realized they had more to discuss and picked up the phone again, which would have triggered the system to record by default.

"The minute our investigator found out, they troubleshot it and I said to cut it all off for right now," O'Connor said. "There was no intent whatsoever to record attorney-client conversations and we rectified the problem."

About the same time, Victoria defense attorneys became worried. Many in-person talks with inmates - conducted in two small stalls separated by glass and linked by phones - began with an all-too familiar warning.

"This call is subject to recording and monitoring," many lawyers heard.

Chief Deputy Terry Simons said the system cannot record conversations without first offering the audible disclaimer.

Defense lawyers called a meeting with, among others, O'Connor, District Judge Robert Cheshire and District Attorney Steve Tyler, who represented the county during talks.

'YOU'RE CRAZY'

At the end of April, the sheriff stopped the default record system inside a few specific jail stalls, used regularly by lawyers and clients, he said. Instead of automatically recording talks in those stalls, the system now records only if a jailer orders it to do so, the sheriff said.

Investigators might choose to listen to a lawyer's discussion if reasonable suspicion exists that the lawyer is a co-conspirator in a crime.

O'Connor stressed that his investigators did not purposely listen to any other so-called privileged conversations - and did not pass tidbits to Tyler, the prosecutor. Tyler confirmed the sheriff's statement.

Both O'Connor and Tyler, however, said jailers can legally record and listen to any and all attorney-client conversations conducted in jail.

Sheriff's investigators cannot act on that information or pass it to any outside offices without negating its admissibility in court, the sheriff said.

For this reason, O'Connor said he doesn't want his staff listening to such talks. Doing so can hurt court cases, he said.

In this case, though, defense lawyers waived their privilege by talking after the audible warning that clearly notes conversations are recorded, Tyler said. That the sheriff locked down the call Copeland listened to - and maintains the promise his staff won't listen to other calls - is beyond fair, Tyler said.

"In the management of a jail, it's not required to establish a confidentiality room," Tyler said. "The sheriff's office did nothing unethical or illegal, nor did it violate any civil rights. There has not been anything established they released these things for use in a trial. What those defense attorneys did was waive privilege. When they heard the warning, they should have stopped talking."

The debate about whether it's legal to record and use jailhouse talks between lawyers and clients is compounded by gray areas in case law.

Tyler points to case law and a Texas Attorney General opinion that says:

Inmates have no expectations while in jail to privacy or privileged conversations.

As in a police car, officers can secretly record or broadcast conversations of people who are detained.

Even a claim of attorney-client privilege is subject to a general waiver rule.

Although Tyler said the law supports recording conversations, he said he's never used attorney-client discussions during any of his prosecutions.

"You shouldn't talk about anything if you have problems with other people hearing it because you were given a notice," Tyler said. "If you do that with an expectation of privacy, you're crazy and you ought not be an attorney."

'THIS IS SOME DANGEROUS GROUND'

Defense lawyers say jailhouse recordings of attorney-client conversations violate federal civil rights and common sense.

Patti Hutson is one of the local defense attorneys who asked to meet with O'Connor, Cheshire and Tyler. She said defense lawyers were not told in January about the new recording system.

"We were operating under the old rules and not told we needed to protect ourselves," she said. "This is often our only means of communicating with clients. It's a huge problem, depending on if and who they allowed access to it. If the wrong people get to listen to all of that, you're pretty much sunk by the time you get to trial."

Hutson heard the audible warning, but figured it was a glitch in the system, she said.

While Hutson said she doesn't believe the sheriff's staff purposely listened to her talks, she feels vulnerable without a certainty of privacy.

"Even though they say I waived something, I didn't on behalf of my client," she said. "I'm concerned enough to make a big deal about it."

Keith Hampton, a member of the Texas Criminal Defense Lawyers Association, said Tyler and O'Connor are wrong to say such conversations can be recorded.

"Part of the problem with that argument - besides chilling the zone of privacy - is that it's impossible to sift out what part of the conversation is being used by investigators and what is not," he said. "The attorney-client privilege is one of the oldest privileges. How do I get the information from my client if I'm being recorded?"

It seems case law and statute might struggle to keep pace with rapid advances in technology, said Katherine Ferguson, a Greenville lawyer with experience in these matters.

In 2007, Ferguson defended Brandon Woodruff, a 21-year-old man accused of capital murder. His case was delayed for months after a judge found Hunt County prosecutors violated his Sixth Amendment rights by recording and listening to talks with his lawyer from jail. Investigators passed the recordings to the prosecutor, who eventually recused himself from the case.

Ferguson points to the following as grounds for why recording such conversations are unconstitutional:

The Fifth Amendment, which affords people the right to avoid incriminating themselves.

The Sixth Amendment, which affords the right to counsel and privileged conversations.

Texas Government Code 495.025, which says: "The (prison) shall ensure that no confidential attorney-client communication is monitored or recorded by the department or any person acting on the department's behalf ... "

The government code applies to convicted inmates.

"If someone has been found guilty and has that right, why not the people awaiting trial in the county jails?" Ferguson said. "Recording inmates also makes an unfair distinction between indigent people - those who can't afford to bond out of jail - and those who can. Under your county's theory, the government could bug our phones and say, 'Well, we're not going to listen to it.'"

George Filley is a Victoria defense attorney and former longtime district attorney.

He acknowledged O'Connor's decision to stop automatically recording all conversations and the sheriff's contention that Copeland inadvertently listened to a lawyer's talk. Still, he finds fault with putting recording devices on phones used by clients and lawyers.

"It cuts into trial tactics and stifles any candor any lawyer would expect from a client during the visitation," Filley said. "I've never come across something like this in my 35 years of practicing law. This is some dangerous ground. If the capability is there to record, it's going to get done. Someone is going to record a person who is accused and unable to make bond. I object to the very ability to record conversations between the attorney and the client. I know where I'm going to talk to my clients - at the courthouse."

'I THINK THAT'S PRETTY DARNED GOOD'

O'Connor appears to be going out of his way to calm worried defense lawyers. He said he welcomes visits by anyone with questions and stressed they reversed the automated phone system to protect lawyers and defendants.

Audits, which show if an investigator listened to recorded jailhouse conversation, are available upon a defense lawyer's request, he notes.

"Did we purposely listen to attorney-client calls? No," the sheriff said. "Did we turn anything over to anyone else? No. If lawyers hear that prompt, they need to stop, step out of the booth and get a supervisor. We don't have to do this, but we're not going to record in the booths assigned to lawyers. I think that's pretty darned good."

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," 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 it possible we can do that? Yes, but the system will rat us out. And remember: If it was illegal to record jail calls, they would be filing a civil or a criminal charge - and they're not."

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