San Diego DUI Law Center

A defense lawyer representing a man facing the death penalty will seek to get the case dismissed because the Sheriff’s Department recorded at least one and perhaps dozens of phone calls he had from his client in jail.

Lawyer Christopher Plourd said yesterday that he will file a motion in court today seeking the dismissal of the charges against Mark Jeffrey Brown, who is accused of killing two San Diego women and is awaiting trial. It was the latest fallout in the growing controversy surrounding a system that recorded an unknown number of calls between lawyers and jailed defendants.

The system was shut off last week by the Sheriff’s Department after a defense lawyer in another case filed a similar motion objecting to the recording.

The defense lawyers say the recording violates the attorney-client privilege – which says communications between a lawyer and a client are confidential – and a state law that makes it a felony to eavesdrop on jail calls from inmates to lawyers.

Authorities can record calls from inmates to others such as family or friends. The law bans recordings of lawyers, doctors or religious advisers.

The Sheriff’s Department has said the system was not supposed to record calls to lawyers whose numbers were entered into a database for the system. However, that database was incomplete and did not contain all the numbers for all lawyers – leading to an untold number of calls being recorded.

Prosecutors could access the recordings from their computers, which has alarmed defense lawyers.

District Attorney Bonnie Dumanis was adamant yesterday that no prosecutors had illegally listened to any of the recordings.

Dumanis said that when an inmate calls from jail, a prerecorded voice announces to the other party that the call is subject to recording. She said continuing to speak after that point amounts to consent to the recording by both sides.

The state law banning attorney-client recordings says eavesdropping occurs when a call is recorded “without permission from all parties.”

“I believe they have given permission by way of continuing to talk once they were told it was recorded,” Dumanis said.

That is an interpretation vigorously disputed by defense lawyers. Plourd said he did not give permission for the recording and never waived the privilege.

Public Defender Steve Carroll said several of his lawyers – who represent the majority of defendants in the county jails – have said they never heard the taped message at the beginning of a call.

Others have said that after hearing the message they said into the phone that it was a protected call to a lawyer and that they specifically did not give consent for it to be recorded.

Carroll also said his office will be asking the sheriff and Dumanis’ office to determine the number of cases where recordings were made.

With that list, he said, defense lawyers then will go through their case files to try to determine if any information from the calls was used improperly by prosecutors.

Private criminal defense lawyers are also upset and want Dumanis to conduct a larger investigation, said Michael Crowley, the head of the Criminal Defense Bar Association in San Diego.

He said Dumanis should determine how many cases are involved and prosecute anyone who intentionally violated the law.

Dumanis said she was willing to meet with defense lawyers and discuss the issue but did not embrace the idea of a widespread investigation. She said she has set up a committee to deal with the issue and asserted that no one in her office acted improperly.

“I’m not aware of anyone in our office who has listened to an attorney-client call that has been recorded,” she said.

Although prosecutors had access to the system and were trained how to use it, they were also told to stop listening to any call when they realize it is an attorney-client matter, Dumanis said.

That does not satisfy Plourd. He said he learned in February that a phone call with Brown had been recorded and he alerted prosecutor Tracy Prior. Plourd said Prior told him it was a mistake and should not have happened.

Prior then filed the disc containing the phone recordings with the judge in the case and said in court papers that she did not listen to any calls. She also said she was not aware that attorney calls had been recorded until told by the defense. Similar statements were filed by the paralegal and an investigator on the case.

Plourd said he asked in April for any documents describing any policies and protocols for prosecutors to access inmate communications but was told no such information exists.

San Diego DUI lawyers noted ten days ago that there may be a problem with San Diego DUI attorneys’ clients calling their San Diego DUI lawyer from jail.

Now prominent San Diego Criminal Defense attorneys say the San Diego Sheriff’s Department improperly recorded their privileged conversations with jailed San Diego clients. The San Diego Sheriff’s Department says it was a mistake and does not know how many such calls were recorded. It is unclear whether San Diego attorney prosecutors listened to the recorded conversations.

San Diego County Sheriff’s Department unplugged a system last week that records all phone calls from jail inmates after outraged San Diego criminal defense lawyers realized their conversations with clients also were being recorded.

A San Diego lawyer for the San Diego Sheriff’s Department said the recordings, which defense lawyers say are privileged conversations protected by law, were made because of an inadvertent glitch in the telephone system.

But San Diego defense lawyers said the eavesdropping is a felony under state law and can carry penalties of up to $5,000 per call.

They are also concerned that prosecutors – who have access to the recording system from their desktop computers – could have been privy to conversations, too.

In at least one case, a San Diego defense attorney filed a motion this week seeking to get the District Attorney’s Office removed from his case.

Jim McMahon, a San Diego criminal defense lawyer with the county Alternate Public Defender, found out that his trial strategy calls with client were recorded when he heard them on a disc provided by prosecutors. It was in a package of materials that all prosecutors are required to turn over before trial.

San Diego prosecutors planned to use some of the phone conversations the client had with friends and associates during the case.

McMahon said he did not know if San Diego prosecutors listened to any of the recordings, adding that the mere fact that they had them was bad enough. “I’m not at all comfortable with the DA being supplied with confidential, privileged phone calls with my client. “

A San Diego lawyer and a special assistant to the San Diego sheriff, maintains it was unknown how many San Diego attorney-client phone calls have been recorded.

However, all of the calls from the San Diego jail that were recorded have an automated message at the beginning warning that the conversation was being monitored or recorded.

Jack Campbell, a prominent criminal defense lawyer and deputy public defender in Vista, said he has heard the warning for some time, but has still raised an objection because he said the law is clear that recording such conversations is wrong. He has filed court papers in a case he is handling to stop the practice.

The San Diego Sheriff’s Department launched the recording system in 2003 with AT&T and switched to PCS in February 2007.

Using a San Diego attorney directory, the department uploaded a database of 5,000 phone numbers of local attorneys. If an inmate called one of those numbers, the call would not be recorded.

However, San Diego sheriff’s officials said they did not realize how deficient their database really was.

Inmates have no right of privacy in jail, and courts have long held that their phone calls can be taped. But California law prohibits recording conversations from jail between attorneys and clients, San Diego Public Defender Steve Carroll said.

In an e-mail message sent June 11 to all lawyers in his office, Carroll said the law is “unequivocal in its prohibition of this conduct.” In the same e-mail, Carroll said his office is considering filing lawsuits against the San Diego Sheriff’s Department and San Diego District Attorney’s Office.

He also wrote that referring the matter to the state attorney general also might be warranted.

San Diego District Attorney Bonnie Dumanis said yesterday that prosecutors only recently became aware of the situation and have a committee working on it. She said she takes any breach of the attorney-client privilege seriously.

But she said she was not aware of any instance in which a prosecutor or a district attorney’s investigator listened to any protected conversations between San Diego lawyers and clients.

The state law prohibiting eavesdropping on attorney-client calls also bans listening to confidential conversations between doctors and patients, and ministers and penitents.

In January 2007, a newsletter analyzing recent court cases written by prosecutor Robert Phillips and posted on the sheriff’s Web site discussed that law. In many instances, eavesdropping on an inmate call is lawful, Phillips wrote.

But listening to attorney-client talks is a felony and “a serious no-no,” he added.

The San Diego sheriff’s lawyer said part of the problem occurred when inmates would call attorneys’ direct lines or cell phones – numbers that are not usually published in lawyer rosters and directories. Often only the main number for the attorney’s law firm or public defender’s office is listed; the system is being changed to allow lawyers to have their calls blocked out.

“If a client calls an attorney, and they hear the message that ‘this call is being recorded,’ they will also get a number to call to say, ‘I’m an attorney and need to be put in the database’,” a sheriff’s lawyer says.

Campbell, the well-respected criminal defense lawyer and Vista public defender, said such a solution is not satisfactory because they put the burden on the defense attorney to opt out. Jack’s comments are historically accurate. Few San Diego Criminal Defense Lawyers are more in tune with the system.

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