Lawyers object, but other DA offices have monitored recordings
11:34 PM CDT on Friday, September 14, 2007

By IAN McCANN / The Dallas Morning News

Hunt County prosecutors have come under fire from defense lawyers for listening to recordings of inmates' jail phone calls in several capital murder cases, but theirs isn't the only district attorney's office to do so.

Collin, Rockwall and Denton county prosecutors have also received recorded calls from their jails, and Rockwall's district attorney said he sees no problem with listening to attorney-client calls � the action that has brought Hunt County prosecutors the harshest criticism.

The Hunt County office's practice of requesting and listening to recorded phone conversations have come to light in the run-up to the capital murder trial of Brandon Dale Woodruff, the 21-year-old charged in the October 2005 stabbing and shooting deaths of his parents in their home near Royse City.

In that case, prosecutors asked the county's chief jailer to give them recordings of Mr. Woodruff's phone calls, some of which were with his attorneys.

"Certainly there is attorney-client privilege, and you can waive that. Once you're put on notice that this is being recorded, then you have waived that right," said Rockwall County District Attorney Ray Sumrow, though he said he couldn't recall his office ever receiving such a recording.

"I don't see a legal or ethical problem, assuming that they have been notified," Mr. Sumrow said.

But some defense attorneys said they saw big problems with prosecutors listening to attorney-client calls. Longtime Dallas defense attorney Barry Sorrels said that while warnings to inmates that their calls are monitored could be seen as adequate notice, attorney-client calls should be confidential.

"All the law that I'm familiar with says that it's unlawful and unethical to record attorney-client communication," Mr. Sorrels said.

Colleague Gary Udashen said the notion that prosecutors could monitor attorney-client calls was "crazy."

"I don't see how any attorney can say that it's OK," he said.

Williamson County District Attorney John Bradley said case law has established that inmates, whether they're warned that their calls are recorded or not, have no expectation of privacy. But he warned against listening in on attorney-client calls, though he said prosecutors could win a legal argument over their right to do so.

"There will be some discomfort to explain that to the public, as I'm sure the Hunt County DA is finding," said Mr. Bradley, who teaches courses for prosecutors and their investigators on the use of jailhouse recordings.

Still, he's a strong advocate of monitoring jail calls. "We've developed hundreds of examples of how we've prevented crimes, prevented coercion of perjury and convicted criminals," he said.

Michael Moore, a Denton County assistant district attorney, said his office does not request copies of recorded phone calls from the jail. But, he said, the Sheriff's Department and other law-enforcement agencies do occasionally send recordings of calls that include discussions of criminal activity, admissions of guilt or other useful information.

Mr. Moore said attorney-client calls are off-limits for his department, but he declined to comment on the propriety of Hunt County's actions. At jails in Dallas, Denton, Collin, Rockwall and Hunt counties, inmates who place calls hear recorded messages saying their calls can be monitored. In Dallas, Collin and Rockwall counties, as in Hunt County, every call is recorded, though not all are listened to.

Calls are listened to in Dallas County if the Sheriff's Department receives information about illegal activity or potential security problems, said Deputy Michael Ortiz, a department spokesman. He said the district attorney's office is able to request copies of recorded calls; a district attorney's office spokeswoman declined to comment.

A Collin County Sheriff's Department spokesman, Lt. John Norton, said recordings are sent to the district attorney's office on rare occasions if prosecutors request them. He said he didn't know what kinds of calls had been requested. The Collin County district attorney's office did not respond to repeated requests for comment made this week through a county spokesman.

Calls in the Denton County Jail are randomly monitored, but those with attorneys are not, sheriff's spokesman Tom Reedy said. And Tarrant County sheriff's spokesman Terry Grisham said calls made from the Tarrant County Jail are not recorded unless the Sheriff's Department receives information that illegal activity might be occurring.


Woodruff judge's ruling

In Hunt County, Mr. Woodruff's attorneys cited the monitoring of attorney-client calls in asking that the charges against him be dismissed � a request that state District Judge Richard A. Beacom Jr. denied. The judge said he would rule early next week on whether Mr. Woodruff's rights had been violated and, if so, what remedy he would impose.

Hunt County District Attorney Duncan Thomas this week declined to comment on any specific cases or on his office's policies regarding use of inmate phone calls, citing a gag order in the Woodruff case. At a hearing Tuesday, Assistant District Attorney Nobie Walker insisted that the office had done nothing wrong.

Hunt County Chief Sheriff's Deputy Robert White said inmates are told their calls are recorded, signs in the jail state the same thing, and a recording that plays when calls go through says calls are monitored "for security purposes." He said prosecutors do request recordings, but not often.

Mr. Walker said in court that the issue was whether inmates have an expectation of privacy. "When you pick up the dang phone, it tells you that you are subject to being recorded," he said.

He also said prosecutors learned nothing from the conversations they heard between Mr. Woodruff and his attorney, Jerry Spencer Davis. One recording, he said, indicated that Mr. Davis suspected that the state might be monitoring the conversations.

A defense motion in the Woodruff case mentioned two other capital murder cases in which Hunt County prosecutors requested recordings of calls � those of Adam Kelly Ward, who was sentenced to death this summer, and Abigail Louann Whytus, whose trial is set for December.

Dennis Davis, an attorney for Mr. Ward and Ms. Whytus, said he was surprised to receive tapes from the district attorney's office earlier this year as part of the discovery process. He listened to them and realized they were recordings of Mr. Ward's phone conversations with family members and with an expert being used to determine whether Mr. Ward was competent to stand trial.

Some of the recordings were used at trial, he said, the first time he's aware of jail phone recordings being used in Hunt courts.

"They basically assassinated his character with those outtakes," Mr. Davis said.

Mr. Davis said he refuses to accept calls from clients in the jail, primarily because of their cost. Since learning that prosecutors listen to calls, he said, he has warned his clients not to discuss any details about their cases or defense strategy over the phone.


Privacy concerns

Peter Morgan, an attorney working on Mr. Ward's appeal, filed an affidavit on behalf of the defense in Mr. Woodruff's case stating that the jail lacks private rooms where attorneys and clients can meet: Doors don't close in some, and conversations in others can be heard in halls.

Mr. Morgan, a former Hunt county attorney, said he never thought to use recordings from the jail when he was a prosecutor.

"I'm shocked, not just because of what I'd call a blatant violation of the Constitution," Mr. Morgan said. "But I'm also surprised, and I'd like to know the circumstances where this came about. The attorney-client calls, it's just terrible."

Keith Willeford, another defense lawyer with experience as a prosecutor in Hunt County, said he never used jail phone recordings. In addition to serving four years as Hunt county attorney, he worked under Mr. Thomas as an assistant district attorney and said he believes in Mr. Thomas' integrity.

"I've always found him to be a good person and an ethical prosecutor," he said.

But Mr. Morgan said Hunt County residents should be concerned with prosecutors' actions.

"Hunt County is a conservative place," he said. "But in picking juries here, people respect attorney-client privilege. People respect constitutional rights."

Staff writer Karin Shaw Anderson contributed to this report.

original article

Setting aside the legal issues in the Hunt County case (because the case is pending), the better practice is to:

1) Have an investigator (not a prosecutor) monitor and screen jail phone calls, so that the prosecutor does not get into a position of having overheard privileged information that can be attacked by the defense.

2) Set a policy for the investigator to cease monitoring a phone call when he determines it involves an attorney/client conversation.

3) Advise the investigator of the exceptions to the attorney/client privilege in case he receives information that justifies monitoring such a call (such as information that the attorney is participating in an ongoing fraud on the court or some conspiracy).

4) Avoid sharing any attorney/client recordings with the prosecutor, unless the call clearly meets an exception to the attorney/client privilege.

The attorney/client relationship is quite important and should be protected. All lawyers, whether prosecutors or defense attorneys should respect the privilege and accord it great weight when evaluating how and when to pierce the privilege.

Likewise, though, defense attorneys should recognize the danger of using recorded jail phones to conduct attorney/client business. The better practice for a defense lawyer would be to limit communications to face-to-face or written communications. Or arrange for the adoption of a policy by the local jurisdiction to protect the attorney/client privilege over recorded phone lines.

In Williamson County, the investigator is instructed to avoid monitoring attorney/client conversations absent evidence suggesting an exception to the privilege exists. The investigator is very careful to not share attorney/client recorded conversations with prosecutors unless there is a clearly established exception that can be proven in court.

This policy preserves law enforcement's ability to collect valuable information from the many phone calls that have nothing to do with attorney/client conversations. It also respects the attorney/client relationship and avoids needless litigation over whether the defendant waived that privilege by conducting a conversation over a phone call that began with clear notice that it was subject to monitoring and recording.

What about an addition to the surveillance warnings on the line and in the jail: "attorney client privilege calls are prohibited." If they don't make the calls, there won't be any claim a "privileged" call was overheard. It ought to be enough to say--we need to talk. As far as I know, there is no right to have privleged conversations via telephone. That's what the holdover facilities in the courthouse and attorney client rooms at the jail are for.

I think that solution would be fine, too. But, viewing the picture from the point of view of a county taxpayer, I think I would rather permit lawyers and clients to communicate over the jail phone and accomodate their right to a privileged communcation. The alternative is more expensive -- requiring visits by the lawyer to the jail; correctional officers to move inmates; additional space for the visitation rooms. The jail phone call, on the other hand, is efficient and actually earns money for the county.

It is not too much of a burden to have an investigator screen out the attorney/client calls. We already do that with mail, don't we?

[This message was edited by JB on 09-15-07 at .]

"The client can waive the privilege by voluntarily disclosing or consenting to the disclosure of a significant part of the privileged matter." The only issue is whether the warnings lead to voluntary disclosure. To me, if they constitute implied consent for the purpose of the wiretap law as held in Banargent, 228 S.W.3d at 403, they most likely mean that the intent that the communication remain confidential disappears (becomes irrelevant) under Tex.R.Evid. 511. If that is true, then no measures need to be employed to protect against the extent of the disclosure (i.e., which calls are monitored or where the recordings end up). The jail phone is just not one of those ways by which the privileged communication is to take place. Alternatively, a "private" line should be provided for that type of call if that is considered cost effective and necessary.

What kind of service is a defense lawyer giving if they allow his/her client to talk to them over a monitored jail line?

Poor, if he has not confirmed with the jail that the monitoring will not result in release of those recordings for use in a criminal case, absent evidence of an exception of the attorney/client privilege.

I've personally had cases where plots to kill witnesses were discovered through listening to recorded jail calls. In many other cases, defendants have made inculpatory statements in spite of the fact they clearly understand that they are being recorded or overheard by others. (For example, the case in which the defendant and his mother were discussing what a poor choice he made in taking the "hair dryer" from the house on the night when he threatened the victim with a handgun. "You should have left the hair dryer at home, son." "Where is the hair dryer now, Mom?" "It's safe, son, don't worry about it." "Don't let the cops find it, Mom." Can anyone crack the code?)

I would, however, agree with JB: it may be legal, but you're asking for trouble if you listen to attorney calls. At the very least, the attorney will raise Cain about it in court.

The phone calls by inmates from jails provides significant information for the prevention and discovery of criminal activity. We have used phone calls to:

-increase courtroom security in response to a plan to cause injury in court to a lawyer or judge;

-identify perjury, including a plan to lie directly to the judge through witnesses in a motion to revoke hearing;

-identify unknown victims of crime, including a child who had been sexually abused for years by her father;

-locate instruments of a crime, including guns and other weapons that were hidden from police;

-locate drugs, including drugs that were being sold to generate money for bail;

-identify co-defendants;

-corroborate investigations;

-collect confessions;

-uncover plots to pretend to be incompetent or insane.

Anyone have any other examples?

Hunt County prosecutors are being accused of misconduct. That is simply false. The recordings may or may not be admissible in evidence under Rule 511. Apparently the recordings in question contain nothing relevant to the case anyway. There was no misconduct under the wiretap law because there was implied consent to the recording. Besides the prosecutors did not make the recording. The entire defense argument is baloney. I guess it deserves attention because it arises in a capital case, and does sound like big brother at work. But, there is no basis to disqualify anyone just because they listened to a tape.

I agree the claims are exaggerated. But, there is reason prosecutors should be careful in this area.

Agreed, the prosecutor did not create the recording. But, that is not the basis for the accusation. The accusation focuses on the misuse of the recording.

The defendant is claiming that use of the information contained in the recording violates a rule of evidence -- the attorney/client privilege. That is debatable, but if it does violate the privilege, then the judge must look for a solution.

One solution is to simply prohibit the introduction of the recording. That sounds obvious enough.

But, the defendant goes further and argues that disclosure of the contents of the recording provided the prosecutor with otherwise confidential information that can not be protected simply by suppression of the recording. The argument is that there is no way to be sure the prosecutors don't use that protected information (presumably some sort of super secret strategy), except by (1) disqualifying the prosecutors and assigning new ones with no knowledge of the contents of the recording or (2) dismiss the case.

If the judge finds the contents of the recording disclose nothing significant in the way of strategy or such, then mere suppression should be sufficient (assuming that he even finds the recordings violated the privilege).

But I suppose my point is that there is tremendous risk taken by a prosecutor in listening to a recording that is likely to contain attorney/client conversations, but, at the very least, the prosecutor will have to engage in litigation to defend the access to that recording. If the prosecutor wins, then all is well. If the prosecutor loses, not only is the recording suppressed, but there is a chance that the prosecutor loses the ability to represent the state in the litigation.

And, I do have to say, there should be great weight given to the attorney/client privilege. I haven't represented a defendant, but if I did, I sure would want to know I was on solid ground in being able to protect the conversations I was having with my client. Without that protection, the entire relationship is on shaky ground.

[This message was edited by JB on 09-17-07 at .]

There is no question confidentiality must be honored and protected. But, disclosure is disclosure. It may not seem very voluntary under the circumstances of being confined at the time, but it is also not clearly involuntary. You can have the best of intentions, but when the means used are poor you cannot rely on intent alone.

Still, there can also be an issue of denying access to one's attorney. E.g., Pecard, 998 P.2d at 459-60.

Perhaps this case will help answer some of the questions about jail talk.

A couple of years ago we tried a habitual offender. While he was in our local county hilton awaiting trial, he made several phone calls, one of which was to a bondsman. In speaking to the bondsman, he was informed that my trial partner at the time, Kathleen Catania, was prosecuting his case. To my recollection, the conversation went something like this:

Bondsman: the case is not going away. Kathleen Catania is prosecuting the case and its not going away

Defendant: Sh!t. Well--maybe I could buy her off--how much money do you think it would take to buy my way out?

Bondsman: YOU DON'T HAVE THAT MUCH MONEY

We played that call, along with a few others, at his trial and got the jury note every prosecutor loves--"Which is longer, 99 years of life?"

I am of the opinion, for what it is worth, that the defendant does not waive the attorney-client priviledge just by being jailed.

Usually, the jailed defendants have public defenders (apptd attorneys), and cannot bond out for a variety of reasons. Sometimes, the only feasible contact with your attorney is by phone, due to factors outside the defendant's control.

Contrast the jailed-defendants with the 'bonded out'-defendants who also have public defenders. The ones on bond get to have all the privileged phone conversations they want with their public defenders, and prosecutors cannot routinely check in and listen to them.

Afterall, most jails have an attorney-client meeting room that is not supposed to be recorded or monitored?

I think the 'routine' listening in on atty-client conversations, absent one of JB's notable exceptions above, is not appropriate. However, I am of the opinion that you get to record and listen in on all unprivileged conversations.

I do not see how the waiving of a privilege could be voluntary when the only way the inmate has to contact his attorney and/or spouse is via the jail phone system. It is not reasonable to expect a person to just sit there and not try to make any contact with their attorney and/or family. Any waiver, i would think, has to be freely given.

11:00 AM CDT on Tuesday, September 18, 2007

By CHIP BROWN / The Dallas Morning News
chipbrown@dallasnews.com

Texas redshirt freshman running back James Henry has been charged with felony counts of retaliation and tampering with physical evidence in connection with the alleged armed robbery involving former Longhorns football player Robert Joseph in July, according to Austin police.

According to police, Henry admitted to Joseph in a taped jailhouse phone conversation to assaulting one of the victims and disposing of a backpack containing stolen items in the alleged July robbery.

Contact should be available by written document or in-person visit as well. Nonetheless, a waiver is not involuntary simply because a defendant does not like his limited choices. After all, when presented with criminal charges, a defendant can plead guilty (or no contest) or not guilty. Some defendants don't like those choices but make voluntary decisions every day.

The discussion here should focus on what would be the best practice. I agree that a best practice would be to provide a jailed defendant with access to telephone contact with his attorney under conditions that would protect the attorney/client privilege. But, that is not an absolute right. It is subject to the security needs of the jail and the exceptions to the attorney/client privilege.

Wasn't a defense lawyer recently convicted in federal court for using attorney/client meetings to pass on messages from a suspected terrorist?

quote:

---

Originally posted by RTC:
I do not see how the waiving of a privilege could be voluntary when the only way the inmate has to contact his attorney and/or spouse is via the jail phone system. It is not reasonable to expect a person to just sit there and not try to make any contact with their attorney and/or family. Any waiver, i would think, has to be freely given.

---

Glad you are not an appellate court judge.

The Dallas Morning News today reported that "Brandon Woodruff's constitutional rights were violated and that some evidence should be suppressed because jailhouse phone calls between Mr. Woodruff and his attorney were recorded and shared with prosecutors.

"But Judge Richard Beacom Jr. said he won't dismiss murder charges against Mr. Woodruff, bar the Hunt County district attorney's office from the case or name a special prosecutor.

"In a written ruling issued at a pretrial hearing, the judge said prosecutors violated Mr. Woodruff's right to counsel and attorney-client privilege.

"'Although the Court does not believe that the Office of the Hunt County District Attorney acted with malice or without some case authority to support their actions, this Court believes that the practice of the State listening to a defendant's telephone conversations with his attorney is a violation of the 6th Amendment,' Judge Beacom wrote.

"'In a close case, we must error in favor of the Defendant and the Constitution,' he wrote."

For the rest of the article, click the link at the top.

I always told my clients not to discuss their cases over the jail phone because I knew the calls were recorded. I went through the "this is a pencil, this is a piece of paper" speech on how to contact me and then I promptly went to the jail once contacted.

As a general rule I did not speak to my clients even with members of the client's family present because in doing so otherwise privileged conversations were in danger.

I know that listening to these conversations violate an innate sense of fairness we prosecutors have (because we are supposed to be on the side of justice and rightly want to be fair), but, as a technical point of law I do not see how a conversation between a lawyer and a client, knowing that that conversation is likely not to be a private one due to its recording, can rightfully claim privilege under the law.

It seems to violate the "it ain't fair" rule, but not the "it ain't legal" rule.

[This message was edited by Bob Cole on 09-19-07 at .]