Most people assume that a conversation with their lawyer will remain confidential. But if the conversation takes place on the phone from the New Orleans jail, it might be used as evidence of a crime.
One inmate awaiting trial on drug charges mentioned to his lawyer that he had just gone through detox.
The call was recorded by the Orleans Parish Sheriff’s office, and his statement was used to prove that a needle the inmate was carrying when he was arrested had been used for illegal drugs, according to the inmate’s lawyer, Thomas Frampton. He was convicted of possession of drug paraphernalia.
“It ended up being the critical evidence,” said Mr. Frampton, who was then a public defender in New Orleans and is now a lecturer at Harvard Law School. Mr. Frampton objected to the inclusion of the evidence, but the judge disagreed.
Conversations between criminal defendants and their lawyers about their cases are typically protected from disclosure, so long as there is no discussion of a continuing or future crime or fraudulent act. This privacy, known as attorney-client privilege, helps guarantee the Fifth Amendment right against self-incrimination and the Sixth Amendment right to legal counsel.
Yet in some places, those conversations, which are so crucial to an inmate’s defense, can be difficult to have.
That includes New Orleans, where all calls made by jail inmates to their lawyer’s cellphone (and to anyone else’s) are recorded and archived in a system that law enforcement officials can access. As a result, if a defendant speaks to his lawyer about evidence against him, or about the sort of plea-bargain offers he would be willing to accept, a prosecutor might be listening in.
This practice is highlighted in a new report from Court Watch NOLA, a nonprofit group that is demanding the sheriff’s office stop recording any calls between jail inmates and their lawyers in a city where the criminal justice system is already stretched. New Orleans public defenders rank as some of the most overworked in the country, in a state with the highest incarceration rate. The district attorney, Leon A. Cannizzaro Jr., is being sued on the grounds that he used fake subpoenas to coerce witnesses to talk, and that he had witnesses who were reluctant to cooperate jailed.
“Where the attorney-client privilege is subverted, so too is the truth-seeking function of the legal system,” the report concludes.
Aides to the local sheriff and district attorney defend the call surveillance. In calls made from jail a message is played warning that the call is subject to recording and monitoring, so they say those on the call know the conversation is not private or privileged. Last year the sheriff implemented a system allowing unrecorded inmate calls to a lawyer’s landline, once the lawyer submits an affidavit listing that landline number.
And, they say, lawyers can always go to the jail to speak to clients in person.
But to criminal-defense lawyers in New Orleans, all of that is a fig leaf: Most of the lawyers who represent inmates are badly overworked public defenders carrying 150 felony cases or so at a time. The notion that they can routinely take an hour or two to go to the jail to see a client — or that they are likely to be at a landline when a client is able to call from the jail phone — is absurd, they say.
Some criminal defense lawyers gave up landlines long ago, too, and only use cellphones.
“I don’t know a lawyer who still has a landline,” said Nandi Campbell, a private criminal defense lawyer in New Orleans. A few years ago, Ms. Campbell approached the prosecutor in one of her cases with a lowball plea offer, though she and her client had talked about their willingness to accept a longer sentence.
“He told me he knew the real number I and my client were discussing,” Ms. Campbell recalled. “That’s how I knew he was listening to my calls. I was startled.”
Jailed clients are already at a disadvantage when it comes to planning their defense. Inmates are less able to help attorneys find witnesses or gather other information. And since they are incarcerated and not working, they face more pressure to plead guilty, and they have less money to pay a private lawyer.
Ken Daley, a spokesman for Mr. Cannizzaro, declined to specify how often prosecutors listen to clients calling their lawyers’ cellphones, but he said: “Any call that is on that monitoring and recording system is basically fair game.”
Mr. Daley said the warning that plays at the beginning of these inmate calls constitutes “a voluntary waiver that vitiates privilege” for anyone on the call.
“If public defenders are complaining that they find it inconvenient to visit their clients in jail (they have 24/7 access, by the way) or to utilize the sheriff’s established protocol for unmonitored (and thus, privileged) calls, perhaps they are in the wrong business,” Mr. Daley said in a subsequent email. He added that it is “extremely rare” for jail calls to lawyers to be used as evidence.
Experts say the government is required to provide defendants reasonable access to private, privileged conversations with their lawyers — though what amounts to “reasonable” access is not precisely defined.
Procedural hoops similar to those in New Orleans have been overturned by legal challenges in other places when courts have decided they unreasonably restrict clients’ access to their lawyers, said Peter Joy, a Washington University law professor who has studied government monitoring of attorney-client communications.
“Otherwise it puts a public defender with a heavy caseload in a corner,” Mr. Joy said. “You can only discuss what’s going on with your client over a phone, and most likely a cellphone. But then your client is going to be penalized for having open and frank discussions with you.”
Most jails do not record calls between lawyers and their clients, or have mechanisms in place to erase those calls without anyone listening to them, he added.
Yet New Orleans is not alone: Court Watch NOLA surveyed 47 other city jails across the country and found eight that record calls between clients and lawyers: Salt Lake City; Minneapolis; Tulsa, Okla.; Boston; Frankfort, Ky.; Columbia, S.C.; Annapolis, Md.; and Concord, N.H.
Blake Arcuri, the general counsel for the Orleans Parish Sheriff’s office, said Orleans is one of the few parishes in Louisiana that allows some unrecorded calls between lawyers and clients in jail.
Mr. Arcuri acknowledged that there are inconvenient waits for defense lawyers who meet clients at the jail.
But he defended the monitoring policy, citing concerns about witnesses being intimidated or harmed. A lawyer could hand a cellphone to someone else who could be fed instructions from an inmate, he said.
Dane Ciolino, who teaches legal ethics and criminal law at the Loyola University New Orleans College of Law, said it was “ridiculous” that the jail requires lawyers to go through such hoops, though it was not clear that this amounted to a violation of the constitutional right to counsel.
Given the huge workloads and limited time of public defenders, Mr. Ciolino said, a good case could be made that for inmates to have “reasonable access” to privileged conversations with their lawyers all such calls should be private.
As things stand now, he said, when inmates call their lawyers’ cellphones, rather than discussing evidence or defense strategy, the lawyers almost have to do the opposite.
“It puts the defense lawyer in the very odd position of essentially reading a Miranda warning to their own clients,” Mr. Ciolino said.
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