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The erosion of the attorney-client privilege has been the white-collar bar’s top gripe over the past few years. But over the past month or so � at a time when dozens of companies are waiving privilege in connection with wide-ranging stock options investigations � the privilege debate in California’s federal courts has taken a blue-collar turn. In three separate federal cases, defendants accused of violent or gun-related crimes say the government eavesdropped on their phone conversations with lawyers � calls that defense lawyers say are subject to attorney-client privilege. And in each of those cases, the government argues that prisoner calls with lawyers may be recorded, and that prosecutors may gain access to those recordings. Those arguments have the defense bar arguing both principle and pragmatism: That such communications are privileged and that, if courts decide they are not, defense lawyers for indigent clients would be forced to rack up huge expenses to personally visit jails for even minor client contacts. The uproar began last month when a San Francisco federal prosecutor in a seemingly minor felony case took contradictory positions on the privilege question. Since then, the ACLU and a coalition of criminal defense lawyers have each filed amicus curiae briefs in the case. And the same battle is being waged in a pair of prison-violence cases in the U.S. District Court for the Central District of California. Defense lawyers say eavesdropping infringes on a defendant’s right to counsel, and violates equal protection, since some jails provide unmonitored phone lines for attorney-client conversations, while others don’t. “It’s clearly a constitutional issue because I’m being impeded in my ability to defend cases,” said Paul Potter, a Pasadena criminal defense lawyer representing Alejandro Mujica in Riverside federal court. Mujica is charged with murder in connection with a Victorville prison brawl, and could face execution. At a hearing last week, Potter told Judge Virginia Phillips that she should dismiss the charges because the government listened to conversations between Mujica and Potter, in addition to calls between Mujica and the Mexican embassy. Federal prosecutors say that only an FBI agent listened to those recordings, and that they were withheld from prosecutors due to privilege concerns. Nonetheless, they argue that the calls were not subject to privilege. “Before using the jail telephones, defendants (and, presumably, their attorneys and consulate officials) were on notice that all telephone calls from the jail are subject to recording and monitoring, and thus defendants waived any privilege,” Assistant U.S. Attorney Antoine Raphael wrote in court filings. Or, as a county official in San Bernardino, where Mujica is being held, put it in a letter to Potter: “Inmates and their attorneys should not confer by telephone after booking if they wish to communicate privately.” Potter says that shouldn’t be the case. “It’s an issue that casts a shadow over many, many, many attorney-client relationships,” he said. Defense lawyers are also upset with L.A. federal prosecutors in a RICO case tied to the Aryan Brotherhood prison gang. In the case of Joseph Hayes � who is accused of ordering members of a gang called the Nazi Lowriders to commit crimes � prosecutors say that a “taint AUSA” reviewed all the tapes and excluded conversations between Hayes and his attorney, Mark Windsor. But they also argue that the conversations were not privileged. Windsor says the fact that the government accessed the tapes at all amounts to wrongdoing, since, he said, prosecutors only received tapes of calls to phone numbers that they specifically requested. “I’m outraged. In my case I’m being targeted,” Windsor said. He found out about the tapes when they were turned over through discovery. While Windsor’s request that the case be thrown out didn’t meet a particularly warm reception, Judge George Schiavelli on July 31 ordered San Bernardino County jailers to stop providing recordings of attorney-client conversations to prosecutors without a prior court order. That order was heartening to the defense, but offers little certainty as to how other courts will decide the issue. $92 an hour In the San Francisco dispute, Chief Judge Vaughn Walker indicated he’d rule quickly. In his courtroom on July 19, Assistant U.S. Attorney Susan Jerich announced that she was recusing herself � on a supervisor’s recommendation � from an illegal firearm possession trial because she had inadvertently listened to a small portion of a conversation between defendant Lloyd Jamison and his lawyer, Ian Loveseth. Jerich said she had intended to listen to Jamison’s taped phone calls with other people, and accidentally ended up hearing the talk with Loveseth, which she said was privileged. But several days later, Jerich came back into Walker’s courtroom and announced that the government had reversed its position, and that phone calls between jailed defendants and their attorneys are not subject to privilege because all parties are notified that the calls are recorded. In an amicus brief, defense lawyer John Philipsborn � writing on behalf of the California Attorneys for Criminal Justice � tried to tie together the issues of practice and principle. “Taken to its logical conclusion, the government’s argument (especially if dignified by this court) may result in the anointment of the view that no person subjected to pre-trial detention may have a confidential communication with a lawyer because the telephone systems imposed on jail inmates can be taped,” he wrote. And local defense lawyers aren’t happy about that. “When you go to the jail, you are put through the most arcane, bureaucratic rigmarole, and are left just standing there, with guards just drinking coffee, sitting there and watching you,” said Nanci Clarence, a San Francisco defense lawyer � and incoming San Francisco Bar Association president � who’s been on the federal indigent defense panel for 20 years. “Before you realize it, appointed lawyers have been paid for a four-and-a-half or five-hour visit for something that probably didn’t even require a visit,” Clarence said. At $92 an hour, she added, that’s a significant taxpayer expense. Rory Little, a former federal prosecutor and now a professor at Hastings College of the Law, said he sees the dispute as a bureaucratic, rather than constitutional, quandary. “If you have a sign on the phone that says ‘this call is being recorded,’ then no one has a reasonable expectation of privacy,” he said. And since federal authorities must rent space from state jails, they have little control over what recording systems are in place � and little ability to force jailers to provide unrecorded phone lines. A solution can probably be brokered, he said, but not without a judge’s prodding. While defense lawyers and prosecutors wait to see how Walker rules on the San Francisco case, current and former prosecutors wonder why such a contentious argument is being made in an apparently minor gun case. “I was surprised they’re being as aggressive as they are,” said Jeffrey Bornstein, who left the San Francisco U.S. attorney’s office last year to become a partner at Kirkpatrick & Lockhart Nicholson Graham. “We always took a very conservative approach when I was a prosecutor, out of fear of infringing on someone’s right to counsel.”

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