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In a bitter fight over attorney-client privilege, federal prosecutors have staked out a position they’d normally chide their opponents for taking: blaming the victim. The new tactic comes in litigation over whether federal prosecutors may listen to a jailed defendant’s phone calls with counsel. The rules governing such phone calls are ambiguous: Defense lawyers argue that state law and jail rules specifically prohibit eavesdropping on attorney-client calls. But prosecutors say defense lawyers should know better than to talk to an incarcerated client on the phone. A prosecutor in the San Francisco U.S. attorney’s office upped the ante last week with an even more aggressive stance: She said attorney Ian Loveseth provided ineffective assistance to client Lloyd Jamison by talking on the phone. “Counsel concedes he was ineffective,” Assistant U.S. Attorney Susan Jerich wrote in an Aug. 21 brief, “by advising Jamison that Jamison’s calls to him were privileged, despite notices to the contrary.” Loveseth said he and other defense lawyers presume that those notices � both in the form of recorded messages and signs posted in the jail � did not apply to calls between inmates and their attorneys. The issue blew up in July when Jerich said that while listening to jailhouse tapes of Jamison’s phone calls, she accidentally heard part of a conversation between Jamison � accused of being a felon in possession of a firearm � and Loveseth. Jerich told Judge Vaughn Walker on July 19 that her office’s ethics expert said she’d listened to a privileged conversation, and she had recused herself from the case. A few days later, the office changed its stance. Jerich remains the lead lawyer, and in her briefs argued that there’s nothing wrong with listening to the conversations since the lawyer and prisoner are notified of taping by the county jails, where many federal defendants reside pretrial. That argument has angered a foaming group of defense lawyers � along with the American Civil Liberties Union � who protested with amicus briefs. Lawyers for indigent defendants were particularly irate, since a lack of phone privilege means they’ll have to drive hours for in-person meetings. At $92 an hour, that’s a low rate for the lawyers � but a big expense for taxpayers. Loveseth points out that in a declaration attached to the government’s latest brief, the Alameda County Sheriff’s Department official who oversees the phone monitoring system articulated Loveseth’s understanding of the rules. “Any inmate calls placed to a member of the federal public defender’s office for the Northern District of California or a member of the federal conflicts panel, also known as the ‘CJA,’ is [sic] not monitored,” wrote Deputy Sheriff Veronica Ibarra (.pdf). Yet Ibarra’s wording is ambiguous � she describes a procedure for private lawyers to request that there is no monitoring of their calls. It’s unclear whether panel defenders like Loveseth also must make such a request. However, she does say that before turning tapes over to law enforcement, “deputies with the Alameda County Sheriff’s Department review each call in an effort to ensure that no attorney-client phone calls are disseminated.” That should be enough, Loveseth said. “When the person calls my offices, the guy answers, ‘Law office,’” he noted Monday. Since state law prohibits jailers from giving recordings to prosecutors, he added, lawyers assume that state facilities will operate under that guidance. But it’s unclear how that law applies to federal defendants, especially because it’s not clear how prosecutors acquired the computer disk with Jamison’s calls. “The U.S. attorney’s office will not say what procedure they used to get the disk,” Loveseth said. A spokesman for U.S. Attorney Kevin Ryan wouldn’t comment. While Walker could decide the issue any time, the U.S. attorney’s office has allowed him a relatively painless way out. The easy exit would come by way of Jamison’s motion to dismiss key evidence, which was filed early this month on the grounds that police � in the words of one witness � “bum rushed” the house where they found the gun they say is Jamison’s, and did not have consent to search it. The U.S. attorney’s office never opposed that motion, and Loveseth said Jerich told him it didn’t plan to. By suppressing the evidence, Walker could jettison the phone issue without reaching its merits.

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