29 minutes ago
A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.
Thursday, June 24, 2010
Inmates Want Phone Calls To Lawyers Recorded, Says...Sheriff
Cops hate criminal defense lawyers and criminal defense lawyers hate cops.
That's not a true statement, but it is what most people think.
Sheriff Grady Judd of Polk County, Florida, in his defense of his new policy to record inmate calls to their lawyers, didn't use the word hate, he used "lazy."
Judd also admits that he is now getting complaints from inmates that their lawyers are lazy.
Now let's stop for a moment. Here we have a sheriff, claiming that he's doing inmates a favor by recording their conversations to their lawyers.
Truth be told, Sheriff Judd says he's abiding by the law, and he's right. It is now legal to record attorney/client telephone conversations if the attorney and client know the conversation is being recorded.
As a recent client told me though, "this isn't right, it's just legal.
Sheriff Judd also says he spoke to many inmates (I hope who weren't represented by counsel) who told him they were relieved to hear they will now get to meet their attorneys before their court date.
The Polk County public defenders claim the increased visits to the jail will cost taxpayers millions. They want money for gas and extra video conference links. They want two million dollars.
Sheriff Judd, unfazed by any notion of overworked public defenders, has a solution to the concern about client contact:
"We're not telling them you can't have unfettered access to your clients. You can, and it's really simple. Come to the jail 24/7," Judd said.
Sheriff Judd says if the inmates "say something illegal," he will use it against them. "We're allowed to record these conversations, and why wouldn't we record the conversations in order to make the best prosecutable case to protect the victims and prosecute the criminal defendants. Why wouldn't we do that," the sheriff said.
Why wouldn't we do that?
I don't practice in Polk County, but I assume the decision to use evidence against a defendant is up to the prosecutor, and decided upon by the judge.
And the state attorney? What's his position?
"As a lawyer in the criminal justice system, I value the attorney client privilege. While I know I can use conversations between attorneys and their clients in criminal cases, I will not ignore the importance of the attorney client relationship for the purpose of gaining an advantage in a criminal case. I may be a prosecutor, and entitled to use this evidence, but I will not forgo my commitment to the profession and the ideals upon which it is based. The Sheriff can record all he wants, I'm not going down that road."
I'm just kidding, he didn't say that.
He said this:
The state attorney's office says that as of July 1, they will consider all calls made via the jail house recording system as potential evidence.
There are many questions surrounding this new policy. One is, why? Other than it's legal, what's the point? To gain evidence in a criminal case?
Most jail calls go like this:
"Hey, what's up with my case?"
"Can't I get a better deal?"
"Are you the prosecutor or my defense lawyer?"
"When are you coming to see me, again?"
"Can you send me what you've already sent me 3 times?"
"Did you get a hold of Roy, my defense witness?" "No, I don't know his last name."
Are the police going to sift through the approximate 600 phone calls a day from the Polk County jail to try to find evidence? Who is going to do that? Who is going to pay for that?
There has been discussion for a long time that if the Bill of Rights were before Congress today, only the Second Amendment would pass.
I think the attorney client privilege would also be legislated out of society, or diminished to the point of irrelevancy.
In Polk County my client can't call me as his lawyer and talk to me on the phone without the police listening, and using it as evidence. So me, and any lawyer who has a case there will either not be able to talk to their client as often, or cases will be delayed because "judge, I couldn't get to the jail this week."
I look forward to the first jail call to an attorney that is seen as potential evidence in a criminal trial, and I look forward to watching what the judges do about it, and have to say about it.
To those that think this is a good thing, I'm sure you do - you're not sitting in jail.
Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter