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As long as defendants have been warned adequately, their jailhouse telephone conversations may be recorded and used against them at trial, the Georgia Court of Appeals has ruled. The March 4 decision establishes a statewide precedent on the issue, which in recent years has divided trial judges in DeKalb County and elicited a spirited debate between prosecutors and criminal defense lawyers. In 1999, Judge Robert P. Mallis of DeKalb Superior Court found that the recorded jailhouse telephone calls of a murder defendant could be used against her. The next year, however, DeKalb Superior Court Judge Linda W. Hunter excluded the jailhouse recordings in a drug trafficking case, saying prosecutors had overstepped the privacy rights of pretrial detainees. In the case decided by the appeals court Monday, Mallis had allowed prosecutors to introduce recordings of Michael Smith talking from jail to his girlfriend, against whom he eventually was convicted of assaulting and making terroristic threats. Smith appealed his conviction, arguing Mallis should have suppressed the recordings because, while he knew jail personnel might listen to his calls for security reasons, Smith had not consented to his calls being recorded. Judge Herbert E. Phipps, writing for himself and Presiding Judge J.D. Smith and Judge Anne E. Barnes, disagreed. Phipps noted that “there is no Georgia authority on the issue of whether and when an inmate has given implied consent to have his telephone calls recorded.” But he pointed to several lower federal court decisions concluding inmates effectively consented to their calls being recorded when, for example, a prison handbook said calls would be monitored and notices were placed on or near the telephones warning that calls could be monitored. Smith v. State, No. A01A1916 (Ga. Ct. App. March 4, 2002). THE SMITH CASE In Smith’s case, the prosecutor said handbooks, notices near the telephones and a message played on the telephone before a conversation begins informed inmates that their calls may be monitored. Smith denied having seen a handbook or notices, but he admitted to having heard the telephone message, according to Phipps. The panel concluded that Smith’s admission was “sufficient to constitute implied consent to the monitoring and recording of his telephone calls.” Smith’s lawyer, Robert J. Storms of the DeKalb Public Defender’s Office, had not received the decision when reached by a reporter. He said that after conferring with his client, they would decide whether to ask the court to reconsider or petition the Georgia Supreme Court for certiorari. Robert M. Coker, DeKalb assistant district attorney, called the decision “very important,” because it’s the first pronouncement on the issue by a state appeals court here. Nationally, courts have allowed inmate recordings to be introduced at trial, as long as proper warnings are given, said Kent S. Scheidegger of the California-based Criminal Justice Legal Foundation, which usually backs prosecutors in such cases. Scheidegger added, however, that generally “some access has to be made” for lawyers to speak privately with their inmate-clients. Indeed, that is why new federal prison regulations declaring that some of the people detained in the post-Sept. 11 investigation are not entitled to private conversations with their attorneys were so controversial. Mikki W. Jones, a spokeswoman for the DeKalb jail, said calls from attorneys are not recorded. Numbers from attorneys are blocked from the recording devices, Jones added. In 2000, Atlanta attorney Jeffrey B. Bogart won a decision from a Cobb County judge excluding recordings of his client’s conversations. The key issue was one unavailable to most inmates, because Bogart’s client was a minor. State law prohibits minors from consenting to have their calls recorded. State v. Meehan, No. 00900289-18 (Cobb Super. Sept. 27, 2000). Bogart said Wednesday that when jails promise not to record attorney calls, “You’re asking the fox to guard the hen house.” But Bogart added that the more pervasive problem with recording inmate calls is that, despite warnings on the telephones, inmates will forget about them and divulge sensitive information. Bogart suggested that calls from jails should include a regular beep every minute or two in order to remind the speakers that their calls are being monitored. IDEA CALLED ‘ABSURD’ Daniel J. Craig, the Richmond County district attorney in Augusta, Ga., called that idea “absurd,” saying it’s not the state’s responsibility to make sure inmates don’t do anything that would harm their cases. Craig said that his county jail does not record calls. Two recent Georgia Supreme Court cases address issues related to the privacy of inmates. One suggests inmates should expect no privacy rights, but the other notes that a distinction exists between pretrial detainees and convicted inmates. In 1996, Burgeson v. State, 267 Ga. 102, examined whether a tape recording of two defendants, made with a hidden device in the back of a police car, violated state wiretapping laws. In a unanimous decision written by Justice P. Harris Hines, the court found that “[f]or the purpose of a privacy analysis, a police car is much like a jail cell, that is, no reasonable expectation of privacy exists.” In 1999, the Georgia Supreme Court decided State v. Henderson, 271 Ga. 264, a case challenging the search of a pretrial detainee’s cell. 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 pretrial detainee retains a limited but legitimate expectation of privacy.”

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