REGION: Jails to resume recording inmate calls

Sheriff's department says attorney calls will not be taped

By TERI FIGUEROA - Staff Writer | Tuesday, July 1, 2008 8:12 PM PDT ∞

More than a week after putting the brakes on the practice, San Diego jailers on Wednesday are likely to resume recording calls made by inmates. But they will take greater pains to be sure they don't tape calls to attorneys, a Sheriff's Department spokesman said.

The practice of recording inmate calls came under fire in recent weeks after criminal defense attorneys complained their conversations with jailed clients were being taped. Such conversations are legally protected as confidential communications.

In late June, the San Diego Sheriff's Department agreed to stop all recordings, whether the call was to an attorney or to the inmate's mom, while officials scrambled to figure out what to do.

But now, spokesman Lt. Phil Brust said Tuesday, the department plans to resume the recordings. This time, though, they are trying to weed out calls to attorneys by placing the lawyers' phone numbers in a database where the taping would be blocked.

"Our hope is that we will not have any more of these problems," Brust said.

The lieutenant said the problems came when the database of numbers to be excluded from automatic recordings "wasn't updated as it should have been."

"Once we realized it, we shut down the database," Brust said.

The department records nearly every call made by jail inmates, Brust said, for security reasons and to monitor the activities of inmates who may try to intimidate witnesses or make calls related to crimes, as well as for investigative and intelligence gathering reasons.

Inmates make some 3,200 calls a day ---- more than 1.2 million a year, Brust said. Deputies and investigators are not listening to those calls in real time, Brust said, but listen to some of them later.

With the new system, the onus is on the defense attorneys to be sure the Sheriff's Department has their phone numbers in its database. Any numbers not in the database will be subject to recording.

Brust said the new and improved system expected to kick in Wednesday will warn both parties that the call is recorded, and then will remind the parties with another warning a few minutes later.

Defense attorneys say that such warnings may not be adequate, that the permission to record a call between a defense attorney and clients must be given outright, and not tacitly in the form of continuing a conversation even with the warning.

Last month, North County-based Deputy Public Defender Jack Campbell asked the court to force the jailers to stop recording his calls with a client jailed in the southern end of the county.

"The right to counsel is one of the most fundamental criminal justice principles in the United States, and that includes the right to have a conversation" with an attorney in private, Campbell said.

In his court filings, the defense attorney argued that the practice of recording such legally protected confidential calls without the consent of both parties is a felony.

In one San Diego case, the lawyers are asking that a trial judge dismiss murder charges against Mark Jeffrey Brown, who faces the possibility of the death penalty if convicted of multiple killings.

Brown's attorney, Christopher Plourd, learned of the practice of recording privileged attorney/client calls when he heard his own voice on recorded calls his clients made. Those recordings were turned over to Plourd as part of a pretrial exchange of evidence.

His client was damaged, Plourd argued, because the intrusion into confidential communication "essentially acts as a denial of his fundamental right to counsel."

Plourd said prosecutors have access to any of the calls recorded under the system, and he fears that they or their investigators can listen in on his private conversations with clients.

"I'm sure that 99.9 percent (of the calls) never get listened to," Plourd said. "But if there is a DA interested, the DA can tap into those calls."

San Diego County District Attorney Bonnie Dumanis, in response to questions posed to her spokesman Tuesday, released a statement that her office is working with the Sheriff's Department and criminal defense attorneys "to remedy the situation."

"To my knowledge, no one in the DA's office has listened to a conversation between an inmate and their attorney," Dumanis said in the e-mail statement, sent through spokesman Paul Levikow. "We do our best to protect the attorney/client communication."

The San Diego County Bar Association on Tuesday declined to comment on the situation.

Defense attorney Campbell withdrew his request of the court in recent days after learning that the Sheriff's Department had temporarily halted the practice in order to update the list of attorney phone numbers so calls to those numbers will not be recorded. He said his number is now on the updated database.

Campbell said he has complained to colleagues about the practice for years, and that he has heard of a number of other attorneys who have come across recordings of their telephone conversations with jailed clients.

"My guess is no more attorney/client calls will be recorded," Campbell said. "I take the sheriff at his word."

But the battle over the recordings may be far from over. Campbell, whose client is charged with felony drunken driving, said he may file motions asking for more information about the recordings.

And Plourd's motion to dismiss the Brown death penalty case is set for later this month in a San Diego courtroom.

Contact staff writer Teri Figueroa at (760) 740-5442 or tfigueroa@nctimes.com.

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