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The California Supreme Court ruled Monday that a heart-to-heart chat between an inmate and a visitor can be taped by authorities and used as evidence against the defendant in a criminal trial. “California law now permits law enforcement officers to monitor and record unprivileged communications between inmates and their visitors to gather evidence of crime,” wrote Justice Janice Rogers Brown for the majority in People v. Loyd, 02 C.D.O.S. 3895. The Alameda County case underscored a gap between a 1994 state law — which said that inmates’ visitors can be recorded — and a 1982 opinion, De Lancie v. Superior Court, 31 Cal.3d 865. In De Lancie, the Rose Bird-led court ruled that authorities could tape to bolster prison security, but they couldn’t keep the tape rolling to gather evidence for prosecutors. Brown avoided slamming De Lancie in her opinion. Instead, she said the 1994 Legislature decided to go back to an earlier, more restrictive view of prisoners’ rights found in another high court opinion, In re Harrell, 2 Cal.3d. 675. Chief Justice Ronald George and Justices Marvin Baxter, Ming Chin and Carlos Moreno signed onto Brown’s opinion. Justices Kathryn Mickle Werdegar and Joyce Kennard wrote separate but concurring opinions. Moreno also weighed in with a separate concurrence. The case has been a high-profile one for the Alameda County district attorney’s office. Although the 1st District Court of Appeal upheld Christine Loyd’s double-murder conviction, it “emphatically condemned” the prosecutor’s office. The court said the district attorney brazenly defied De Lancie when the jail was told to tape Loyd’s jailhouse chats before her case went to trial. The incriminating recordings and other evidence helped convict Loyd of killing her 76-year-old mother, as well as 59-year-old Virginia Baily. A. Mark Hutchins, a senior deputy district attorney in Alameda County who argued the case before the California Supreme Court, said the high court’s ruling means that no one can question the ethics of the district attorney’s office or Thomas Rogers, the prosecutor who tried the murder case. “We knew that he didn’t do anything wrong,” Hutchins said. “I feel vindicated and exonerated,” said Rogers, the primary target of the court of appeal’s scathing opinion two years ago. Defense attorney Jo Anne Wells Keller was unavailable for comment. Loyd is the first time the California Supreme Court has looked at the Legislature’s 1994 amendment to Penal Code � 2600, Hutchins said. “Although people knew that De Lancie was on shaky legal ground,” no one had ruled on it, Hutchins said. In their concurrences, Werdegar and Kennard were more blunt than Brown in their views of De Lancie. “In my view, [the majority's ruling] is true not because the holding in De Lancie was abrogated by intervening amendments to Penal Code � 2600,” Werdegar said, “but because De Lancie was erroneously decided.” Kennard took issue with the majority opinion’s lengthy hand-wringing about De Lancie. She also shook her finger at the Alameda County district attorney’s office. “The prosecution took considerable risk instituting a surveillance practice this court had condemned,” she said. In a third concurring opinion, Moreno noted that the district attorney asked the jail to tape Loyd’s calls, too. Federal law would limit recording outbound calls without a warrant, he wrote.

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