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Some DeKalb County, Ga., inmates have discovered that using jailhouse telephones can be harmful to their cases and beneficial to prosecutors. That’s because their phone calls to friends or relatives — captured by a laser voice recording system, digitized and saved on compact disks — are making their way to prosecutors, thanks to a high-tech recording system at the DeKalb jail. There’s nothing new about jailers recording activities and telephone calls of prisoners to maintain security and order at the jail. In fact, state law specifically permits such surveillance, says a lawyer for the Georgia Sheriffs Association. “Recording inmate conversations has been standard practice at the jail since it first opened to prevent escapes, riots and other illegal activities,” DeKalb Sheriff’s Investigator Charles Connor testified at a hearing on the issue last fall before DeKalb Superior Court Judge Linda W. Hunter. What is new in DeKalb, and apparently in at least one other metro Atlanta jail, is the use of pretrial detainees’ conversations by prosecutors to bolster their cases against the suspects. Prosecutors in DeKalb District Attorney J. Tom Morgan’s office, who have been using the recordings for about two years, say the practice is perfectly lawful. They say all but one DeKalb judge, when presented with the issue, has admitted the recordings into evidence. “The question is, did we get it legally and lawfully?” says Assistant District Attorney Noah Pines. “The answer is yes.” DEFENSE LAWYERS FIGHT BACK But the practice has evoked howls of prosecutorial misconduct from some defense lawyers who argue that prosecutors are able to glean the defense’s trial strategy and other incriminating information from inmates’ talks with their families. Included in the recorded conversations are inmates’ calls to their lawyers — although DeKalb jail officials say they don’t listen to those and don’t hand them over to prosecutors. Likewise, prosecutors say those privileged conversations are off-limits. But prosecutors’ access to other inmate calls recently drew the disapproval of Hunter, who excluded jailhouse recordings in a drug trafficking case, after finding that the practice violated prisoners’ privacy rights. Surprisingly, the jail’s overseer, Sheriff Sidney C. Dorsey, says he wasn’t aware recordings were available to prosecutors. He likewise says he doesn’t like the practice. The recording system is for security purposes, Dorsey says, to prevent escapes, harm to jail personnel and smuggling of contraband into the facility. “Simply, strictly security,” he says, “and I don’t think it should be designed to assist the prosecution.” Hunter probably would agree. The judge recently barred Pines and fellow Assistant District Attorney Kevin N. Levitas from using the tapes as evidence against Sheldon Landy, charged with cocaine trafficking, aggravated assault and obstruction of an officer. In her April 21 order, Hunter found that prosecutors didn’t engage in misconduct by obtaining and listening to a CD of Landy’s conversations with his wife. But, she wrote, they did “overstep the bounds delineated by the Supreme Court of Georgia with reference to search and seizure, and the privacy rights of pre-trial detainees.” State v. Landy, 99CR-3094-8 (DeKalb Super. Order April 21, 2000). LOWER COURTS SPLIT Last year, however, another DeKalb judge reached the opposite conclusion. Ruling in a murder case, DeKalb Superior Court Chief Judge Robert P. Mallis found that the recorded jailhouse telephone calls of defendant Jennifer Willcutt, charged with the 1997 beating death of 73-year-old Claudia Ruth Woodard, could be used against her. Willcutt later pleaded guilty to voluntary manslaughter. State v. Willcutt, 97-CR-3639-9 (DeKalb Super. Plea Feb. 8, 1999). No Georgia appellate decision directly addresses the issue of prosecutors’ use of recorded jailhouse telephone conversations, although DeKalb prosecutors contend federal law supplies plenty of precedent for doing so. Prosecuting Attorneys Council director Joseph L. Chambers says it’s an interesting issue, one that is certain to be addressed sooner or later by the state’s appellate courts. State law specifically addresses jailhouse surveillance in O.C.G.A. 16-11-62 (2), which provides that it is unlawful for any person, “without the consent of all persons observed, to observe, photograph or record the activities of another which occur in any private place and out of public view.” It is lawful, however, the statute goes on to say, “to use any camera, photographic equipment, videotape equipment or other devices to observe, photograph or record the activities of persons incarcerated in any jail … provided that such equipment shall not be used while the prisoner is discussing his case with his attorney.” Jon Burton, general counsel for the Georgia Sheriffs Association, says the statute clearly permits recording telephone calls from jails. Beyond that, Burton says, “It’s up to the sheriffs and district attorneys to establish policies as to how [the recordings] can be used.” According to Connor, the DeKalb jail’s laser voice system is capable of recording about 210 calls at any time made from the approximately 500 telephones used by inmates. Prisoners are permitted to make collect calls on those telephones and are not limited by time, Connor says. The jail, according to the Sheriff’s Department, currently houses about 3,000 inmates. Calls are recorded, beginning on the eighth floor of the jail, where prisoners charged with more serious crimes are housed, and moving down to other floors, as the system’s capacity permits. The calls are digitized and stored on a computer hard drive, and kept for 30 days before being destroyed, Connor says. Law enforcement agencies or prosecutors may make a written request for a compact disk containing all calls to a given number in the last 30 days, he says, or may come down and listen at the jail. There is no way to compile all calls by a particular inmate. Connor says he screens the first two to three minutes of any calls requested by prosecutors or police before releasing them to ensure none involve privileged attorney-client discussions. Attorney-client conversations, such as any others made over the jail phones, are subject to being recorded, he says, but are not released. Defense attorneys, he adds, can request that calls to their office from the jail be blocked out of the recording system by supplying their number to the jail. Connor testified in the hearing before Mallis that he had pulled up calls that turned out to be discussions between prisoners and their lawyers, but said he couldn’t recall who had made the request. HARD TO KEEP QUIET Criminal defense lawyers typically warn their clients not to discuss their case over the jail telephones. Those warnings, however, often go unheeded, say Decatur sole practitioners Stephen T. Maples and Bernard Knight. Maples and Knight brought the jail recordings challenge in the Landy case. Some clients simply don’t trust their lawyers and will ask relatives to make sure the attorneys are doing their job, and others simply can’t resist discussing plans for trial or hearings with their family or friends, Maples says. In Willcutt’s case, he says, “We probably hadn’t got out the door” before the teen called her grandmother’s house. “There’s no question when the DA’s office has a serious case, they are going to those tapes,” he says, adding that he routinely asks prosecutors in his cases if they have acquired any recordings of jail telephone calls. Maples says prosecutors can divine trial strategy and what would normally be confidential attorney-client information from inmates who tell family members what their lawyers have said. “There’s no reason to release, without a court order, conversations between any two citizens,” Maples says. In the hearing before Hunter earlier this year, Maples was even more emphatic in his distaste for the practice. “I think that it is unlawful. It think that it is wrong. I think that it is illegal,” he told the judge. Prosecutors Morgan and Pines insist that it’s perfectly legal and a practice they intend to continue, although time and resources prohibit utilizing the recordings very often. Attorney-client conversations, they say, are clearly off-limits and they haven’t tried and won’t try to get them. “That’s something we shouldn’t have and we don’t want a part of,” says Pines. But if prisoners tell relatives incriminating information, it’s fair game for admission at trial, Pines and Morgan say. And if they chat about their trial strategy or tell friends what their lawyers have said, that information loses its privilege, they add. Key to the issue, Pines says, is the expectation of privacy. Courts, both state and federal, have found that prisoners have a diminished expectation of privacy, given the circumstances of their incarceration, he says. PRISONERS FOREWARNED DeKalb inmates are given notice that their calls are subject to recordation and that using jail phones constitutes an implied consent to that practice, Pines says. According to Connor, prisoners in DeKalb are informed of the surveillance in several ways: language near the end of a handbook given to all inmates, a scrolling message on the televisions in the jail and a recorded message heard when calls are placed. For a time, he says, signs were posted in the jail but those have been removed. At the time the issue arose in the Willcutt murder case, the jail provided notice only through the handbook and signs posted on doors some 20 feet from the telephones. Prosecutors had obtained recordings of Willcutt’s calls to her grandmother’s house. Pines, in an interview, says Willcutt had talked about her case to numerous other prisoners and he assumed she had done the same to her grandmother, who had raised her. According to a transcript of the February 1999 hearing, Pines told Mallis he requested the recordings in December 1998 because he believed they might contain a confession of sorts. Maples argued that prosecutors discovered and were able to counter a defense strategy through the recordings: that Willcutt was blaming someone else for the crime. The state then took steps to get DNA testing to eliminate that person as a suspect, Maples told Mallis. Prosecutors countered that other information, obtained prior to getting the recordings, led them to get the DNA tests. Ruling from the bench, Mallis concluded that the telephone conversations could be admitted because Willcutt had no expectation of privacy, although he told the lawyers he had some concerns about the state’s ability to access the recordings and he believed the buried language in the handbook was a “poor attempt” to provide notice. Still, the judge said he was compelled to follow a 1996 Georgia appellate case, Burgeson v. State, 267 Ga. 102. In Burgeson, the Georgia Supreme Court examined whether a tape recording of two defendants, made with a hidden device in the back of a police car, violated state wiretapping laws. The court cited a 11th U.S. Circuit Court of Appeals decision, U.S. v. McKinnon, 985 F.2d 525 (1993), which held that the test for whether intercepted communications violate the right to privacy is whether a person has a reasonable expectation of privacy. The Georgia court found that “For the purpose of a privacy analysis, a police car is much like a jail cell, that is, no reasonable expectation of privacy exists.” INMATE PRIVACY ADDRESSED Before the arguments in the Landy case in DeKalb, the Georgia Supreme Court tackled a related issue. In State v. Henderson, 271 Ga. 264 (1999), a case challenging the search of a pretrial detainee’s cell, the justices explored whether a distinction exists between pretrial detainees and state prison inmates who have been convicted of a crime, insofar as their privacy expectations and rights are concerned. Writing for a unanimous court, Justice Carol W. Hunstein held that where a search of a pretrial detainee’s cell is “instigated or conducted by representatives of the prosecution solely for the purpose of uncovering incriminating evidence which could be used against the detainee at trial, rather than out of concern for any of the legitimate prison objectives … the pre-trial detainee retains a limited but legitimate expectation of privacy.” Hunter relied extensively on Henderson in excluding Landy’s telephone conversations with his wife. In Landy’s case, prosecutors argued that they had requested the recordings to find incriminating information and evidence that Landy planned to flee should he file a renewed motion for bond, which had earlier been denied. Maples argued that the state had discovered trial strategy — the fact that Landy’s wife would assert her privilege not to testify against her husband at trial, and that only her testimony at the bond hearing could be used. Prosecutors countered that the information was of no consequence in terms of trial strategy since the wife was not a fact witness. During the September 1999 hearing, Hunter — while not disputing the jail’s right to record the calls — expressed concern about prosecutors’ access to and use of the recordings. She warned that “You can’t get in the back door what you can’t get in the front door.” Her order makes the leap from concern to disapproval. Comparing the recordings to a search, she wrote that prosecutors can’t instigate searches to bolster their case. While the surveillance may have a legitimate purpose, she continued, it apparently also was done “to furnish the recordings to the District Attorney’s office to aid in the prosecution of their cases” and, consequently, was contrary to the Henderson decision. Nor did the handbook and signs provide adequate notice to the defendant, Hunter wrote, since they didn’t inform him of his privacy rights or that prosecutors would have access to the conversations to use against him. The state had made no showing that Landy fully understood the consequences of using the telephone or that he freely consented to the surveillance, Hunter wrote. Finally, she found that the provision in 16-11-62 (2) dealing with jails applied to visual recordings, not telephone conversations. FEDERAL LAW CALLED ‘CLEAR AS DAY’ Pines says Hunter simply is wrong on all scores. Federal case law, he says, is “clear as day” in permitting prosecutors access to the recordings. As for the judge’s reliance on Henderson, Pines says it was error to compare a jail cell search to the routine recording at the DeKalb jail. The recordings are valuable tools, Morgan says, for prosecuting inmates who threaten witnesses over the telephone or in stalking cases, where the stalker persists in trying to contact the victim. The district attorney says he expects that defense lawyers, hoping to discredit snitches or co-defendants, also might want access to the recordings. If they do, however, according to Connor, they’ll have to provide jailers with either a court order or a subpoena, something police and prosecutors aren’t required to do. Connor says he recalls getting a couple of subpoenas from defense lawyers and has supplied the recordings to them. Defense lawyer Jeffrey B. Bogart of Atlanta’s Bogart & Bogart says he has a similar situation in a Cobb County case involving a teen-ager accused of killing a friend during what may have been a game of Russian roulette. State v. Meehan, No. 00900289-18 (Cobb Super. Jan. 28, 2000). Heath A. Meehan, who was 17 at the time of the shooting of William Michael McGee Jr. last October, was held at the Powder Springs jail where his middle-of-the-night telephone conversation with relatives was recorded. Prosecutors want to use the recording against his client, Bogart says, adding that he hasn’t yet received the recording. He questions whether the jail’s recordings are made for security reasons or simply to bolster prosecutors’ cases and whether his young client knowingly consented to the surveillance. He says he plans to contest prosecutors’ use of the recording. Cobb District Attorney Patrick H. Head says the jail has a large sign by the telephones that says the calls are recorded. Inmates who want to speak with a lawyer are directed to an entirely different phone that isn’t recorded, he says. “I have a real problem with recording attorney calls,” Head says, even if no one has access to them. In Meehan’s case, he says, the recording itself makes clear that all parties to the conversation knew the call was being recorded. Evidently, he says, the detective investigating the case obtained the recording because it was part of the police file forwarded to the district attorney’s office. Head won’t disclose what’s on the recording but says he doesn’t anticipate the defense objecting to its admission. Instead, he says, the defense likely will want to use it at trial as well. Head says the case should go to trial in July or August.

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