At a hearing last week in Dillingham, a public defense attorney mentioned to the judge that he had been cautioned by his agency about discussing confidential matters with clients in custody at state correctional facilities. The agency had learned that the state’s Department of Corrections was either monitoring or recording phone calls between inmates and their attorneys, a practice that defies the attorney-client privilege.
DOC officials say they are investigating the matter, and do confirm that some phone attorney phone calls were inadvertently recorded. They also say the problem isn’t yet fixed.
The confidentiality of conversations between attorneys and clients is a basic and sacred tenet of the criminal justice system in the US.
And that’s not a privilege that defendants or even the convicted forfeit when they’re behind bars: the Alaska Department of Corrections’ own policy clearly states that “calls between a prisoner and an attorney may not be monitored except when authorized by court order.”
“Sometime in the fall it was brought to our attention that some attorney calls were being recorded, and we started looking into at that time,” said Kaci Schroeder, a special assistant to DOC Commissioner Joe Schmidt.
Schroeder says that after the department determined that attorney-client calls had been, or were being recorded at state correctional facilities, steps were taken to correct the problem.
But right now there are more questions than the department has answers, starting with exactly how many attorney phone calls were recorded.
“We’re still trying to determine that,” said Schroeder. “At this time we don’t think it was very many, maybe less than forty. That’s what we’ve discovered up to this point.”
Are phone calls between attorneys and clients in jail still being recorded?
“We’re doing our best to make sure they’re not. But I can’t yet guarantee that,” said Schroeder, adding a warning for attorneys: “If at the beginning of a phone call, an automated voice says you are being recorded, then you are being recorded.”
Schroeder says DOC is in the process of destroying material that shouldn’t have been recorded. But can the department confirm that those tapes have not been listened to by law enforcement or state prosecutors?
“Not at this time. That will be part of the investigation.”
She says the department’s internal investigation will also look to see if any criminal cases have been jeopardized by the recorded conversations.
Automated System. Phone communications at Alaska’s correctional facilities are handled by Dallas, TX-based Securus, which has contracts with some 2,200 facilities in 45 states according to the company’s Web site.
In each prison, the communication is automated to provide an easy way to monitor and record all of the inmate phone traffic, minus calls with attorneys (and a few others entitled to confidentiality). The system can also put time limits on calls, and can block specific numbers to prevent harassment.
It’s also designed to automatically not record calls to the listed numbers for inmates’ attorneys.
Hinting that it might have been a technical glitch or training issue, Schroeder says DOC is working with Securus to figure out exactly what went wrong with the system that allowed for the recorded calls.
“Chilled.” The state’s Public Defender Agency says it is aware of at least one recorded phone call between one its attorneys and a client. The agency believes that was not an isolated incident.
In an email, Deputy Public Defender for the Criminal Division Douglas Moody said that until the agency has some assurance that the problem is fixed, the agency “will assume that DOC is listening” to all of the conversations between inmates and agency attorneys.
Private attorneys are also concerned about the recorded calls.
“It’s very troublesome, I’m sure for practically any attorney,” said Rex Butler, a Anchorage-based attorney known to tackle some high profile defense cases.
“It’s bad enough that we have clients spread out all over the state now, in jails that it takes hours to get to,” said Butler, “but then when you get a client on the phone, if they cannot rest assured that they’re getting attorney-client privilege, then it chills our ability to do our job.”
Butler says that DOC needs to provide attorneys with a list of the calls that were monitored or recorded. He also says the department needs to provide some assurances that the problem has been remedied, and that the tapes have been destroyed.
“I really want to be comfortable in knowing that my conversation with my client is going to be confidential. I have to have that.”
DOC is working on the problem and says it will notify attorneys, but adds that it could still take weeks or even months to get it all sorted out.