Jail taped inmate-lawyer calls
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The federal public defender in Pittsburgh says the Allegheny County Jail has been inappropriately recording telephone calls between defense attorneys and their clients and in some cases turning those recordings over to the U.S. Attorney's Office.
On Wednesday evening, Federal Public Defender Lisa Freeland sent a two-page e-mail to members of the Allegheny County defense bar, warning them of what's been happening and telling them that she is attempting to address the problem.
"Suffice it to say, I am incensed," she wrote.
According to jail policy, all outgoing calls made from the jail are recorded -- except those to inmates' lawyers. And it is common practice for prosecutors to request those recordings as part of their investigations.
County jail officials say a revamping of the phone system may have led to inadvertent taping of some inmate-lawyer calls.
Ms. Freeland is working with the American Civil Liberties Union, which has scheduled a meeting with the Allegheny County solicitor's office for Tuesday morning to discuss the issue and identify a possible solution at the jail.
In the meantime, Ms. Freeland has also taken exception with the U.S. Attorney's office for not properly notifying her as to what was occurring and taking proactive steps to stop it.
"I should note that, although the U.S. attorney is assisting, it seems to be doing so begrudgingly, because it does not believe this is such a big deal," Ms. Freeland wrote. "The [Assistant U.S. attorneys], I am told, are well trained and know not to listen to attorney-client protected calls. My request for information is just another accusation that they are evil.
"One problem with that view, in my opinion," she continued, "is that you would think a well-trained AUSA who receives attorney-client calls from the jail (knowing they are not to be recorded and/or divulged) would, the very first time it happened, report it to a supervisor; contact the jail and say, 'Stop sending me those calls'; notify defense counsel; and turn over the recording. None of those things happened here."
A statement from U.S. Attorney Mary Beth Buchanan said her office has never requested any communications between a defendant and attorney.
"Any communications that have been inadvertently received by this office have not been reviewed," she said. "The incidences in which these communications may have been inadvertently provided to this office are extremely rare. We haven't seen the public defender's written allegations. Once we see those, we'll investigate to determine what material was received and whether it was handled appropriately."
But Witold Walczak, the state legal director for the ACLU, said that's not enough.
"Instead of saying, 'We'll investigate, figure out what happened and turn the calls over,' that's not what we've seen. That would be the forthcoming and ethical response."
Instead, Mr. Walczak continued, they've seen stonewalling, and "maybe even an attempt to intimidate the public defender's office into not pursuing the matter. If you're attacking the complaint, you're at least implicitly defending the practice. And that is unconscionable."
If the federal prosecutor's office doesn't decry the practice and ensure it is stopped, Mr. Walczak said the public defender could seek judicial review and possible sanctions.
"U.S. attorneys are not above being sued," he said.
As for the jail, Capt. Thomas R. Leicht Jr., who works for the internal affairs division, sent Ms. Freeland a letter Oct.14 explaining that the jail has revamped its inmate phone network, which could explain the problem.
In 2001, the ACLU brokered a system in which the jail set up both visitation rooms and a phone system to ensure inmates have access to private communications with their attorneys.
For the phone system, the jail programmed defense attorneys' phone numbers into the network, and when inmates dialed those numbers, the recording system would automatically disengage and not tape the calls.
However, Capt. Leicht said during the conversion to the new system, it's possible that a "certain number of attorney phone numbers" were omitted.
"I can assure you that if in fact this did occur, it was done inadvertently and without malice to the parties that may have been affected," he wrote.
Allegheny County Solicitor Michael Wojcik said he takes attorney-client privilege very seriously.
"I'm going to get to the bottom of this," he said. "If someone is to blame, or if something is wrong, we'll fix it."
Ms. Freeland learned of the situation, according to her e-mail, when an assistant public defender was inadvertently sent an e-mail that included a chain of communication between an assistant prosecutor and a federal prison.
In that exchange, the prosecutor said he had audio recordings from the jail, but he had not listened to them because they were made to the public defender's office.
Ms. Freeland said she then immediately contacted First Assistant U.S. Attorney Robert S. Cessar.
"I also contacted the ACJ, but they did not return my calls for several days because the [assistant prosecutor] at issue called the jail and told them I was causing a fuss, which led the jail to get all of its ducks in a row before getting back to me," Ms. Freeland wrote.
Former U.S. Attorney J. Alan Johnson said that the attorney-client privilege is "sacrosanct."
Federal prosecutors should immediately have worked to figure out what happened and rectify the problem, he said.
And, he continued, they should secure any recordings in their possession that they shouldn't have.
"It's something that, when you discover it, you disclose it immediately," Mr. Johnson said. "In my opinion, you have to be very proactive."
If prosecutors were to listen to those phone calls -- in which a defense attorney might discuss the best way to represent his client -- the government could reshape its case, said Mr. Johnson, who now works in criminal defense.
"It's going to make every attorney in town who has a client in the jail wonder if any calls are being listened to by the federal government."
He called it an important issue.
"If somebody was doing that to their phones, I don't think they'd be too happy," Mr. Johnson said. "And if they said, 'I don't think that's a big deal,' I don't think they'd agree with that."
First Published October 23, 2009 12:00 am