L-R Paul Howard, Gail Tusan and Ted Jackson.

A Fulton County judge has vacated an order stemming from her intervention in an ongoing dispute between the county sheriff and the district attorney over access to the sheriff’s security surveillance system and database.

On Oct. 25, Fulton Superior Court Chief Judge Gail Tusan vacated her Aug. 23 ex parte order directing Sheriff Ted Jackson to immediately to restore unlimited access to the Securus Technologies surveillance system for Fulton County District Attorney Paul Howard and his staff.

The system provides video and audio recordings of county jail inmates’ visits and telephone calls, as well as a portfolio of other tools that allow law enforcement officers and prosecutors to monitor, trace and store calls and recordings, listen to telephone calls and employ voice recognition technology and geographic positioning.

Tusan issued the Aug. 23 order after Howard complained in a letter to the judge that Jackson locked him and his staff out of the system “without notice or explanation.”

Howard told Tusan that access to the jail surveillance system was “an integral part” of his staff’s intelligence-gathering operations and was used to conduct “research” by identifying and monitoring inmate telephone calls and by “live monitoring” some inmates.

In perhaps its most visible recent use of Securus, the DA’s staff monitored visitors via live video who met with Atlanta attorney Claud “Tex” McIver. McIver has been jailed on murder charges stemming from what he and his lawyers say was the accidental shooting death of his wife, Diane McIver. Last April, prosecutors cited video-recorded conversations that McIver had with Fulton County Superior Court Judge Craig Schwall and Schwall’s ex-wife in arguing to revoke McIver’s bond.

Tusan said in her new order that, in response to her August directive, Jackson—while objecting to her intervention—restored some of county prosecutors’ access to the jail security surveillance system “although in a manner that is less direct and less comprehensive than previously allowed.”

“That,” she said, “is the sheriff’s prerogative.” Moreover, Tusan added, Jackson informed her that “more direct and more complete access … will be afforded to the district attorney’s office as soon as the sheriff has developed a more rigorous and formal access protocol and as soon as the district attorney’s office complies with the provisions of such a protocol.”

Tusan noted the DA called the sheriff’s new access policy “insufficient.”

“However, the Court’s concern was no access. … The Court (and no doubt the general public) expects that the sheriff and the district attorney will work together as law enforcement professionals to expedite a return to more comprehensive and more direct access, consistent with the sheriff’s office’s reasonable desire to ensure that such outside access is properly regulated,” Tusan wrote.

In her new order, Tusan revealed that Jackson’s decision to suspend access was prompted by concerns over “alleged misuse” of the system. After Howard asked Tusan to reverse the Securus lockout, the judge said she complied “out of an abundance of caution” because she was “concerned about how this development could impact safety in the courthouse and affect general court operations.”

Ken Hodges.

Faced with Tusan’s intervention, both the sheriff and the DA lawyered up with outside counsel. Jackson retained Joyce Gist Lewis of Atlanta’s Shingler Lewis. Howard retained Ken Hodges, a former Dougherty County district attorney and president-elect of the State Bar of Georgia.

In a statement released Tuesday night, Howard said he plans to file a motion asking Tusan to reconsider her ruling. In that statement, Howard objected to being barred from real-time access to live recordings of inmates, their callers and their visitors in what he called a “step back from the best use of Securus.”

Hodges said the sheriff’s new policy requires prosecutors to request permission to access specific recorded conversations. The sheriff’s department will then place the requested recordings on a CD or DVD and forward them to the DA’s office, he explained.

Howard suggested that depriving his staff of real-time inmate surveillance is a public safety risk.

“If we have the manpower to sit and listen to [inmate] calls, and the calls generate information that stops another crime or that provides evidence that the crime for which they have been charged has been committed, that’s a good thing,” Hodges explained. “There have been documented instances where escape attempts or attempts to bring weapons or drugs into the jail have been thwarted by assistant DAs listening to calls.”

Howard also called it “outrageous to hint or intimate, in any respect, some ‘alleged misuse’” of Securus by his office. The DA also suggested that the limitations imposed on his staff’s access “has nothing to do with ‘alleged abuse.’”

“There are those who believe it stems from the McIver case, but I have not had that conversation with Ted Jackson,” Hodges said.

In September, Howard told the Daily Report he believes his office’s surveillance of McIver “did play a part” in the decision to bar his staff from Securus. Howard insisted that monitoring McIver’s conversations has been “particularly important” because McIver is also charged with three counts of influencing witnesses.

On Tuesday, Jackson spokeswoman Tracy Flanagan said the sheriff has drafted a new user agreement that applies “to all parties.” Flanagan also confirmed that nearly 500 law enforcement officers and prosecutors currently have passwords that give them access to county jail surveillance. That includes 252 people employed by the district attorney—nearly twice the 123 members of the sheriff’s department who have access to the system. An additional 53 members of the Atlanta Police Department and 61 members of other county law enforcement agencies also have access to Securus, she said.

Hodges said the DA employs 105 prosecutors and 53 investigators, all of whom had access. The remaining 94 passwords are assigned to prosecutors and investigators who no longer work for the DA but whose access to Securus was never deactivated.

“Obviously, there is a communication issue that needs to be addressed,” Hodges said.