Courts Not Listening to Eavesdrop Concerns?

Judging from a decision late last month by a Riverside federal judge, criminal defense lawyers are going have a hard time getting the federal courts to share their outrage over federal prosecutors listening to tapes of their conversations with jailed defendants.

On Aug. 24, Central District Judge Virginia Phillips denied two defendants’ motion to dismiss a murder case arising from a prison brawl on the grounds that prosecutors and FBI agents improperly accessed privileged conversations between defendants and their lawyers. It was one of three California cases — including one in San Francisco — where judges must decide whether attorney-client phone calls are privileged if prisoners know they’re being taped.

In her order, Phillips wrote that since prosecutors didn’t listen to a tape of Alejandro Mujica on the phone with his Pasadena attorney, Paul Potter, there was no wrongdoing. “Defendants have not met their burden for the Court to dismiss the indictment,” she wrote. “The conduct complained of in this case does not rise to the level required to establish a due process violation.” She also declined to preclude the government from seeking the death penalty.

But Phillips did order prosecutors to give her copies of recordings, which she plans to share with defendants in case they want to argue that certain calls should be excluded from the case.

Court-appointed lawyers like Potter — who in an e-mail last week said the Phillips ruling was “not so good” — have been thrown into fits of apoplexy by prosecutors’ arguments that such recordings aren’t privileged. The defense attorneys say that low rates paid to indigent counsel make it unfeasible for them to drive out to jail facilities for routine conversations that could be easily handled over the phone.

In San Francisco, a similar issue came up earlier this summer in a run-of-the-mill gun case when Assistant U.S. Attorney Susan Jerich announced she had accidentally listened to such a taped conversation, and was therefore removing herself from the case because she had breached the privilege between defendant Lloyd Jamison and his attorney Ian Loveseth. But Jerich subsequently recanted, arguing that in fact it is perfectly legal for prosecutors to listen to such tapes, since the knowledge that such calls are being recorded exempts them from privilege. Jerich has since argued that Loveseth should have known the calls weren’t privileged, and should not have talked with his client over the phone.

That case has sparked the ACLU and a defense lawyers advocacy group to file briefs with Northern District Chief Judge Vaughn Walker, who is still considering the motions.

Justin Scheck


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