CONTRA COSTA PUBLIC DEFENDER CHALLENGES DISTRICT ATTORNEY'S USE OF ILLEGAL CLIENT RECORDINGS
Public defender challenges DA's use of jail phone conversations
By Malaika Fraley
Contra Costa Times
Posted: 01/25/2009 04:49:29 PM PST
MARTINEZ — Contra Costa County's top public defender says the District Attorney's Office is illegally using conversations recorded at jail pay phones to build criminal cases against defendants.
Public Defender David Coleman will go before a Contra Costa County judge Thursday to argue against prosecutors' use of phone calls in a challenge both sides say could ultimately make its way to higher courts.
Coleman contends that the District Attorney's Office's practice of listening to jail phone calls to gain information in criminal cases violates constitutional rights, state wiretapping laws and attorneys' professional codes of conduct. The district attorney's office says the practice is supported by legal precedent and calls Coleman's case "groundless."
"The decision to install a computer terminal in the prosecutor's office in Contra Costa County that links to a database of inmate calls speaks volumes about intentional efforts to gather incriminating statements after the accused has counsel," Coleman said. "Here, the prosecutor is making its own luck (by employing) digital technology, which reveals the thinking, memory, attitude of the accused in ways that offer a power advantage for the prosecutor."
Law enforcement has the right to obtain statements from a defendant directly or covertly before the defendant is charged in a criminal case. It is once a defendant has been charged and obtains counsel, Coleman said, the prosecutors must gain consent from the accused's attorney before seeking oral admissions under the Sixth Amendment right to counsel and professional conduct codes.
So, just as prosecutors can't interview a defendant without his lawyer's consent, Coleman argues that they can't use against the defendant his statements to family and friends during jailhouse phone conversations, regardless of any warning that the call is being recorded.
The Contra Costa Sheriff's Office, which operates county jails, will receive $4.2 million from Global-Tel under a five-year contract in which the Alabama-based company will digitally record and store calls made from inmate pay phones in exchange for revenues generated by the collect calls, according to county budget documents.
The Sheriff's Office can legally monitor calls for jail security purposes, Coleman said, but shouldn't be sharing the technology with prosecutors so they can gain an upper hand over a defendant. Digital technology has evolved so that jail phone call recordings can be mined for incriminating information with a click of a mouse, Coleman said, and the courts have not addressed how prosecutors are using technology to secure statements by an accused person in the absence of their counsel.
Attorneys will argue the issue Thursday before Judge Charles Treat in the criminal case against Hector Jose Sanchez, a 43-year-old Concord man accused of robbing 10 banks from 2004 though 2006. Prosecutors have introduced into evidence conversations that Sanchez had with his mother and girlfriend on jail phones after he was represented by the Public Defender's Office.
Deputy district attorney Doug MacMaster, who will be arguing for the District Attorney's Office, says Coleman is misinterpreting the law. Prosecutors are prohibited from contacting the defendant. Listening to conversation a defendant has with a third party does not constitute contact, they say.
Calling Coleman's challenge "groundless," MacMaster said state and federal courts have deemed legal in several cases the practice of listening to and presenting jailhouse calls as evidence.
"We expect to win because the law is on our side," MacMaster said.
This difference is, said Jack King with the Washington, D.C.-based National Association of Criminal Defense Lawyers, is that Coleman is venturing into unprecedented territory by challenging the use of jailhouse calls based on the Sixth Amendment right to counsel rather than the Fourth Amendment right to privacy and unlawful search and seizures.
"The use of phone call recordings has been deemed sufficient under the Fourth Amendment argument, that's why I like the Sixth Amendment argument here — it's a very new twist," King said. "I've been following jailhouse recording challenges for a long time and this is the first time I've seen this argument aimed at the practice itself. It's brilliant."
King calls the practice "unethical," and unfair to jail inmates. Parties in civil cases and out-of-custody criminal defendants are unlikely to be subjected to having their personal conversations intercepted and then used against them in court. Inmates should not be exploited because they can't make bail, he said.
"If a defendant asks a friend or relative to find a witness in a case, they should have to worry about a situation where the DA is listening in and finds that witness first," King said. "This jurisdiction (Contra Costa County) is going farther than other jurisdictions have or have backed away from. It's just not fair."
