Thursday, May 12, 2011
The ruling by U.S. District Judge William J. Haynes Jr. follows a controversy that erupted when the U.S. Attorney’s Office in Nashville turned over 142 CDs containing evidence of an alleged prostitution ring operated by the Somali Outlaws suspected of trafficking minor females between Minnesota and Nashville for sex. Haynes froze lawyers’ access to the materials when one of the defense attorneys in the case, Patrick Frogge, discovered about 300 jail calls to his law firm were included on the CDs.
Haynes had to decide what should be done about the recordings. Because the calls were largely irrelevant to the case — and because federal prosecutors said they had no intention of listening to them — Haynes could have gone with a narrow ruling that did not address the question of whether the calls are privileged. He went much further, in a broad ruling that gave Frogge most of what he asked for and the government very little.
“I think the opinion is muscular,” Frogge said.
The Davidson County Sheriff’s Office, which runs the Metro Jail, did not comment Wednesday afternoon.
Haynes also noted that federal prosecutors failed to protect the minor victims in the case by not stripping their identifying information from the materials. The judge and his staff will go through the materials on the CDs and redact any information deemed privileged before returning them to the attorneys in the case.
In arguing that the calls are not privileged, U.S. attorneys relied in part on a case from the U.S. 8th Circuit Court of Appeals that says the fact that jail calls are recorded destroys the attorney-client privilege by removing the expectation of privacy.
Haynes rejected that argument because the sheriff’s office has written policies not to listen to or record such conversations, and, as a practice, will block the recording of calls to numbers that it knows belongs to attorneys. Those factors give inmates and their attorneys an expectation of privacy, Haynes wrote. For similar reasons, Haynes ruled that additional calls that were recorded at a Minnesota jail are not privileged because no such policies or practices exist.
Bell, Tenent & Frogge’s phone number was flagged as one of interest by investigators because a defendant in the case had called it from the Minnesota jail. Frogge has said he heard lawyers from his office discussing sensitive information including defense strategies on the calls. The firm’s number was not blocked from recording by the sheriff’s office because the sheriff’s staff did not have it on file as belonging to an attorney.
The sheriff’s office has since proactively informed the legal community that if attorneys provide their phone number, calls to it will be blocked from being recorded.
That’s not good enough, Haynes ruled, because it puts the burden on defense attorneys.
In addition to the clear violations of attorney-client privilege and the Fourth Amendment right against government intrusion into an expectation of privacy, Haynes said inmates’ Sixth Amendment right to reasonably effective assistance of counsel is also threatened. He noted that when the calls are recorded, they are preserved and available for distribution to the public upon request.
Haynes referenced an opinion from the U.S. 7th Circuit Court of Appeals that stated “knowledge that a permanent record was being made of the conversations between defendants and their lawyers would make the defendants reluctant to make candid disclosures.”
Haynes said that he will request that the U.S. marshal in Nashville, Denny King, work with the sheriff’s office to have a separate “legal phone” installed that will not record conversations at the Metro Jail.
At a hearing in April, many of the defense attorneys in the case openly bristled not only at the recording of inmate-attorney calls and their widespread dissemination, but also the fact that prosecutors saddled them with 142 CDs of evidence. Frogge said at the hearing that it was a waste of time and taxpayer money; most of the defense lawyers in the case are appointed and compensated at $125 an hour.
U. S. Attorney Jerry Martin and Assistant U.S. Attorney Van Vincent, the lead prosecutor on the case, have argued that they were merely fulfilling their requirement to share evidence before trial and that they did not cull the information in an effort to be as forthcoming as possible.
That was a mistake, Haynes ruled, because it would require the attorneys to wade through a sea of irrelevant information to find what is actually useful. Haynes wrote that the U.S. Attorney’s Office must strip the materials down and resubmit the evidence to fulfill its requirements. He cited a Supreme Court case that said prosecutors can’t drop 600,000 documents on opposing counsel and force them to find the needles in the haystack.
“Here, the government produced 142 disks and a single disk can be the functional equivalent of a small book,” Haynes wrote.
Reached by phone on Wednesday, Martin said he needed more time to digest the ruling before commenting. Other defense attorneys in the case who were contacted Wednesday afternoon had either left for the day or said they would not comment because the case is ongoing.
Source: Tennessean