Maines public defense agency is still working to determine how many inmate phone calls with attorneys may have been improperly recorded and sent to prosecutors, with four known instances happening since 2015.
The state is investigating the extent to which Maine county jails and phone companies theyre contracted with recorded and released privileged phone calls between attorneys and inmates.
The investigation started with fervor when allegations of apossible violationof a Somerset County Jail inmates right to privately speak on the phone with his attorney surfaced in late April, after the Maine Office of the Attorney General reported it had accidentally obtained recordings of their calls.
In May, public defense attorneys reported to the Maine Commission on Indigent Legal Services at least three other times over the last five years that calls protected by attorney-client privilege were released to prosecutors by three jails.One attorney also reported an instance of a jail allegedly sharing calls between a witness and an attorney seven years ago.
John Pelletier, executive director of the state public defense agency, is trying to determine if that is the extent of the problem.
There may be no (other) calls, there may be two calls, there may be 200 calls we dont know, Pelletier said.
In addition to the 2020 incident in Somerset County, the same jail released an attorneys calls with an inmate in 2015, as did the Two Bridges Regional Jail in Wiscasset, according to a report Pelletier wrote to the commission on May 29.Cumberland County Jail in Portland released protected inmate calls earlier this year, Pelletier said. Cumberland County Jail also allegedly released calls that a witness made from the jail to a defendants attorney in 2013, according to the document.
No additional cases have been discovered since June 18, Pelletier said.
What weve discovered is four instances where attorney-client calls were recorded and came into the possession of prosecutors, he said. I think fortunately for Maine, we did not discover a situation where the prosecutors were readily listening to these calls, using them in plea negotiations or actually litigating the admissibility of calls in cases.
Pelletier said that has happened inother statesand some courts have allowed the calls to be used as evidence.
Pelletier is working with the jails to gather additional information and is considering having the recordings purged from the system, once he understands the scope of the problem, according to the written report. Recorded calls are typically stored for six months to two years.
Bob Cummins, a Maine defense attorney appointed to the commission in 2019, said a broader investigation by the governors office or Maine Supreme Judicial Court may be necessary. Cummins is a former chairman of multiple American Bar Association committees on professional discipline and conduct.
If we have had for some period of years a procedure whereby lawyer-client calls are being recorded, weve got a serious problem, he said. With all due respect to judges and lawyers and prosecutorial authorities, we know things go astray. This is a problem that needs not only attention in court to deal with the immediate problem but also a more comprehensive look at this whole matter of recording.
The commission is awaiting the jails responses before requesting a larger investigation. But the specter of a constitutional challenge to the widespread recording of inmate phone calls has already emerged.
Communications between an attorney and client are confidential and protected under attorney-client privilege. Last month, the American Civil Liberties Union of Maine Legal Director Zach Heiden told Pine Tree Watchthat any interference by the government between an attorney and a client in a criminal matter raises serious constitutional questions.
On Monday, ACLU spokeswoman Rachel Healy said the organization does not have plans to take legal or legislative action and believes its up to the Maine Commission on Indigent Legal Services to fix the problem.
To prevent the future recording of attorney calls, Pelletier sent the jails a list of phone numbers for attorneys employed by the commission. The list did not include private criminal defense attorneys.
Roger Katz, an Augusta attorney and former state legislator, said the need to protect the privacy of attorney-client phone calls extends to all inmates, not just those who cannot afford their own attorney and are provided one by the state. Katz was appointed to the eight-member commission in 2019.
The good news is it seems as though despite these failings prosecutors have been acting ethically, Katz said. The bad news is its a system rife with problems. But the good news is these are totally fixable problems.
Recording and requesting calls
Jails that have released attorney-client calls maintain that recording inmate calls is necessary to protect victims of crimes. Capt. Don Goulet of the Cumberland County Jail said in a phone interview that police have a legitimate public safety interest in recording calls inmates make to family or friends, particularly in cases involving domestic violence.
We have a significant ongoing issue with people contacting their domestic violence partner, he said.
Police or prosecutors may also request recorded phone calls from jail if they suspect the inmate of tampering with a witness. But police and prosecutors dont have to provide evidence of their suspicions and can request calls made by an inmate without a specific reason, attorney Robert Ruffner of Portland said at the commission meeting.
Ruffner recalled an instance in which he explained to his client what would happen in court the next day. The client then called his parents from jail to talk about his case. The next morning, the prosecutor repeated things to Ruffner that he thought were confidential between him and his client, but the prosecutor knew from listening to the recordings of his clients calls with his parents. Ruffner advised his client to stop sharing details over the phone with family members.
This is an example of why there should be guidelines that specify when calls can be listened to and prevent prosecutors from listening in to private conversations without good cause, he told commissioners.
Joseph Jackson, director of the Maine Prisoner Advocacy Coalition, said in a recent phone interview that inmates have long been aware that most of their calls are recorded. But the practice of recording calls without discretion sparks concern of a police state, in which law enforcement is afforded too much power over citizens without sufficient accountability.
Its hard for me to separate what we see now with a big uprising in our country and disassociate it from the practices we see taking place inside, he said, referring to the nationwide protests against police violence following the killing of George Floyd by an officer in Minneapolis. Its hard to imagine an environment thats more trauma-filled than when (officers) have control and qualified immunity.
Jackson was incarcerated in Maine for 19 years on a manslaughter conviction before becoming one of the states leading prisoner advocates.
Further complicating matters is that Maine jails have been closed to in-person visits for months because of the coronavirus. Although some jails have reopened for in-person attorney meetings with restrictions for months the only way inmates could speak to their attorneys was by phone.
A year before change?
With the Legislature out of session, major change wont be immediate.
State Rep. Jeffrey Evangelos, I-Friendship, recommended the commission work with the Legislatures Judiciary Committee to expressly prohibit the sharing of attorney-client calls with anyone. But it would likely be a year before a bill is passed and goes into effect, Katz said. After that, it will be up to the jails to figure out how to comply.
Without a central system overseeing county jails in Maine, thats an imperfect solution, said Jackson. Still, he said the coalition would support the legislation.
Once the issue of recording inmate calls with attorneys is addressed, the commission may also need to address inmate privacy, said Commissioner Sarah Churchill, a private defense lawyer on the commission. The phones inmates use are sometimes located in areas where other inmates can hear one end of the conversation, she said.
To the extent that we solve the recording problem, I think we still have a confidentiality problem, she said. If somebody else can overhear the conversation, then the whole entire privilege is blown out of the water.
Katz suggested that legislation also require jails to provide space for inmates to make private calls or have private visits with their attorneys.
Jackson agreed, pointing out that these conversations often take place before an inmate has received a conviction.
The rights of clients in a (Maine) county jail are less than a client that has been sentenced, he said.
Too haphazard
One of the most troubling findings so far is that some of the jails appear to have known some of the calls should not have been released.
Somerset County Jail has twice released privileged calls to prosecutors. In one case in 2015, the jail produced numerous CDs with an inmates phone calls, including one that contained recordings of 55 calls between an attorney and the inmate.
Though the attorney and prosecutor involved with the case ultimately found the disc had not been turned over to the prosecutor, Pelletier said its creation reflects an awareness that these calls involved privileged material.
And although the matter was vigorously pursued by defense counsel and taken seriously by the court, I got no indication of specific reforms at the jail that came about as a result, Pelletier added.
Under the existing system, attorneys are required to set up an account with the jails phone vendor or otherwise alert the jail that their calls are not to be recorded.
On such a crucial issue, its too haphazard and too burdensome on the attorney, Pelletier said. It seems to me that attorney-client conversations shouldnt require a bunch of hoops to ensure that its confidential.
In the Cumberland County case earlier this year the most recent to have occurred the jail released seven inmate calls to the Buxton Police Department, which shared them with the district attorneys office. A paralegal allegedly identified the error before anyone listened to the calls, according to Pelletiers May 29 report. Goulet, of the Cumberland County Jail, said that the attorney in that case had not registered his phone number with the jails phone vendor.
Goulet said he and Sheriff Kevin Joyce have since sent a letter to attorneys and put a message on their website reminding them that they need to create an account and register with their phone system to protect the privacy of their calls with inmates.
In Somerset County, Sheriff Dale Lancastertold Pine Tree Watchin May that its up to the inmate to provide the jail with their attorneys phone number so if calls are requested, the phone vendor can prevent a recording.
Katz said its up to several parties to make sure calls arent recorded.
Theres shared responsibility of the jail, the provider, the client and the attorney, he said.
Recording inmate calls has become nearly universal across the country following a1984 Supreme Court decisionthat ruled inmates have a diminished right of privacy under the Fourth Amendment, Pelletier reported to the commission in June. But calls between attorneys and their clients should not be recorded, he said during a meeting with the commission.
Inmate phone calls have been recorded in Maine since at least 2006, when Two Bridges Regional Jail hired GTL to run its phone system. TheVirginia-based companyprovides communication services for more than 1.6 million inmates in 2,300 facilities. GTL also provides phone services in the Somerset County Jail.
Maines other 13 county jails have contracted inmate phone services to Securus Technologies, aDallas-based companythat services 1.2 million inmates in the U.S. in more than 3,400 public safety, law enforcement and corrections agencies.
In the recent cases in Maine, prosecutors or a paralegal in the prosecutors office stopped listening when they realized the calls were sent to them in error and reported the incidents to defense counsel, according to Pelletier. He also acknowledged we dont know what we dont know with regard to whether there are additional instances or whether prosecutors have at times used information from these calls to help their case.
Pelletier told the commission it needs to discuss how best to ensure attorney-client calls are not recorded. In addition, if a request for inmate calls is made, the calls should be screened for the attorney phone number before they are given to the police or prosecutors, he said.
The situation is that the default rule is that these calls are being recorded, he said. The question is, how do we make sure that attorney-client calls are somehow exempted from that system?
Pine Tree Watch Staff Writer Samantha Hogan contributed to this report.
Read more:
- Quinn: Supreme Court should clarify Fourth Amendment rights in the digital age - April 26th, 2014 [April 26th, 2014]
- Fourth amendment | Wex Legal Dictionary / Encyclopedia ... - April 26th, 2014 [April 26th, 2014]
- The Fourth Amendment is destroyed by the Roberts led Supreme Court. - Video - April 26th, 2014 [April 26th, 2014]
- Protections for e-data clear Senate committee - April 27th, 2014 [April 27th, 2014]
- Weighing The Risks Of Warrantless Phone Searches During Arrests - April 29th, 2014 [April 29th, 2014]
- Court may let cops search smartphones - April 29th, 2014 [April 29th, 2014]
- Supreme Court to hear case on police searches of cellphones - April 29th, 2014 [April 29th, 2014]
- Fourth Amendment in the digital age: Supreme Court to decide if police can search cellphones without a warrant - April 30th, 2014 [April 30th, 2014]
- What Scalia knows about illegal searches - April 30th, 2014 [April 30th, 2014]
- Should police be allowed to search your smartphone - Video - April 30th, 2014 [April 30th, 2014]
- The Shaky Legal Foundation of NSA Surveillance on Americans - May 1st, 2014 [May 1st, 2014]
- Pennsylvania Supreme Court rules police don't need warrants to search cars - May 3rd, 2014 [May 3rd, 2014]
- Local police: Updated vehicle-search law still requires probable cause - May 3rd, 2014 [May 3rd, 2014]
- Liberal Supreme Court Justice Comes To The Defense Of Scalia - May 3rd, 2014 [May 3rd, 2014]
- Smartphones and the Fourth Amendment - Video - May 4th, 2014 [May 4th, 2014]
- Fourth Amendment Defined & Explained - Law - May 6th, 2014 [May 6th, 2014]
- I-Team: Do police seek search warrant friendly judges? - May 8th, 2014 [May 8th, 2014]
- Is Big Brother Listening? Applying the Fourth Amendment in an Electronic Age - Video - May 9th, 2014 [May 9th, 2014]
- Magistrate waxes poetic while rejecting Gmail search request - May 10th, 2014 [May 10th, 2014]
- The Fourth Amendment - Video - May 10th, 2014 [May 10th, 2014]
- License reader lawsuit can be heard, appeals court rules - May 15th, 2014 [May 15th, 2014]
- Seize the Rojo - Video - May 16th, 2014 [May 16th, 2014]
- NSA Spying Has a Disproportionate Effect on Immigrants - May 16th, 2014 [May 16th, 2014]
- Motorists sue Aurora, police in 2012 traffic stop after bank robbery - May 18th, 2014 [May 18th, 2014]
- Judge Says NSA Phone Surveillance Likely Unconstitutional - Video - May 21st, 2014 [May 21st, 2014]
- New York Attorney Heath D. Harte Releases a Statement on Fourth Amendment Rights - May 22nd, 2014 [May 22nd, 2014]
- The Fourth Amendment Rights - Video - May 23rd, 2014 [May 23rd, 2014]
- Bangor Area School District teachers vote no to random drug - May 24th, 2014 [May 24th, 2014]
- I Don't Care About The Contitution, Take Your Fourth Amendment And Shove It The Hills Hotel - Video - May 27th, 2014 [May 27th, 2014]
- Lonestar1776 at Illegal Checkpoint 80 Miles Inside Border - Standing UP & Pushing Back! pt 2/2 - Video - August 31st, 2014 [August 31st, 2014]
- Suit charges Daytona Beach's rental inspection program violates civil rights - September 3rd, 2014 [September 3rd, 2014]
- 4th Amendment - Laws.com - September 4th, 2014 [September 4th, 2014]
- YOU CAN ARREST ME NOW (cops refuse, steal phone) - Video - September 7th, 2014 [September 7th, 2014]
- The Feds Explain How They Seized The Silk Road Servers - September 8th, 2014 [September 8th, 2014]
- Volokh Conspiracy: Does obtaining leaked data from a misconfigured website violate the CFAA? - September 9th, 2014 [September 9th, 2014]
- Defence asks judge in NYC to toss out bulk of evidence in Silk Road case as illegally obtained - September 10th, 2014 [September 10th, 2014]
- Family of a mentally ill woman files lawsuit against San Mateo Co. after deadly shooting - September 10th, 2014 [September 10th, 2014]
- Minnesota Supreme Court upholds airport drug case decision - September 12th, 2014 [September 12th, 2014]
- Law Talk - Obamacare Rollout; Fourth Amendment, NSA Spying Stop & Frisk DUI Check Points lta041 - Video - September 12th, 2014 [September 12th, 2014]
- Volokh Conspiracy: The posse comitatus case and changing views of the exclusionary rule - September 15th, 2014 [September 15th, 2014]
- Guest: Why the privacy of a public employees cellphone matters - September 16th, 2014 [September 16th, 2014]
- Volokh Conspiracy: Apples dangerous game - September 19th, 2014 [September 19th, 2014]
- Judge expounds on privacy rights - September 20th, 2014 [September 20th, 2014]
- Great privacy essay: Fourth Amendment Doctrine in the Era of Total Surveillance - September 20th, 2014 [September 20th, 2014]
- The Fourth Amendment By Maison Erdman - Video - September 20th, 2014 [September 20th, 2014]
- Volokh Conspiracy: When administrative inspections of businesses turn into massive armed police raids - September 22nd, 2014 [September 22nd, 2014]
- The chilling loophole that lets police stop, question and search you for no good reason - September 23rd, 2014 [September 23rd, 2014]
- Pet Owners Look to Muzzle Police Who Shoot Dogs - September 27th, 2014 [September 27th, 2014]
- Volokh Conspiracy: A few thoughts on Heien v. North Carolina - September 29th, 2014 [September 29th, 2014]
- Volokh Conspiracy: Third Circuit on the mosaic theory and Smith v. Maryland - October 1st, 2014 [October 1st, 2014]
- Volokh Conspiracy: Third Circuit gives narrow reading to exclusionary rule - October 2nd, 2014 [October 2nd, 2014]
- Volokh Conspiracy: Supreme Court takes case on duration of traffic stops - October 3rd, 2014 [October 3rd, 2014]
- Search & Seizure, Racial Bias: The American Law Journal on the Philadelphia CNN-News Affiliate WFMZ Monday, October 6 ... - October 3rd, 2014 [October 3rd, 2014]
- Argument preview: How many brake lights need to be working on your car? - October 3rd, 2014 [October 3rd, 2014]
- The 'Barney Fife Loophole' to the Fourth Amendment - October 3rd, 2014 [October 3rd, 2014]
- Search & Seizure: A New Fourth Amendment for a New Generation? - Promo - Video - October 4th, 2014 [October 4th, 2014]
- Ap Government Fourth Amendment Project - Video - October 4th, 2014 [October 4th, 2014]
- Lubbock Liberty Workshop With Arnold Loewy On The Fourth Amendment - Video - October 5th, 2014 [October 5th, 2014]
- Feds Hacked Silk Road Without A Warrant? Perfectly Legal, Prosecutors Argue - October 7th, 2014 [October 7th, 2014]
- Supreme Court Starts Term with Fourth Amendment Case - October 7th, 2014 [October 7th, 2014]
- Argument analysis: A simple answer to a deceptively simple Fourth Amendment question? - October 9th, 2014 [October 9th, 2014]
- Feds Say That Even If FBI Hacked The Silk Road, Ulbricht's Rights Weren't Violated - October 9th, 2014 [October 9th, 2014]
- Mass Collection of U.S. Phone Records Violates the Fourth Amendment - Video - October 9th, 2014 [October 9th, 2014]
- Leggett sides with civil liberties supporters - October 10th, 2014 [October 10th, 2014]
- Search & Seizure / Car Stops: A 'New' Fourth Amendment for a New Generation? - Video - October 10th, 2014 [October 10th, 2014]
- The Fourth Amendment- The Maininator Period 4 - Video - October 10th, 2014 [October 10th, 2014]
- Judge nukes Ulbricht's complaint about WARRANTLESS FBI Silk Road server raid - October 11th, 2014 [October 11th, 2014]
- Montgomery County will not hold immigrants without probable cause -- Gazette.Net - October 13th, 2014 [October 13th, 2014]
- Debate: Does Mass Phone Data Collection Violate The 4th Amendment? - October 14th, 2014 [October 14th, 2014]
- Does the mass collection of phone records violate the Fourth Amendment? - October 19th, 2014 [October 19th, 2014]
- When Can the Police Search Your Phone and Computer? - October 21st, 2014 [October 21st, 2014]
- Supreme Court to decide if cops can access hotel registries without warrants - October 22nd, 2014 [October 22nd, 2014]
- Third Circuit Allows Evidence from Warrantless GPS Device - October 22nd, 2014 [October 22nd, 2014]
- US court rules in favor of providing officials access to entire email account - October 24th, 2014 [October 24th, 2014]
- EL MONTE POLICE OFFICER VIOLATES ARMY VETERAN'S FOURTH AMENDMENT RIGHT - Video - October 25th, 2014 [October 25th, 2014]
- FBI demands new powers to hack into computers and carry out surveillance - October 30th, 2014 [October 30th, 2014]
- Fourth Amendment (United States Constitution ... - November 4th, 2014 [November 4th, 2014]
- Fourth Amendment - Video - November 4th, 2014 [November 4th, 2014]
- Call Yourself a Hacker and Lose Fourth Amendment Rights - Video - November 5th, 2014 [November 5th, 2014]
- Volokh Conspiracy: Magistrate issues arrest warrants for 17 years but is new to probable cause - November 7th, 2014 [November 7th, 2014]