Revelations that more than 1,000 phone calls were improperly recorded inside Orange County jails, including calls between attorneys and their clients, are raising questions about how widespread the potential constitutional violations are and who should be held accountable.
The Sheriff’s Department and District Attorney’s Office are already under federal and state investigation for illegally using informants against defendants in jail awaiting trial. The misconduct in the jailhouse snitch scandal led to reduced charges and sentencing in at least seven serious criminal cases, including the dismissal of the death penalty in the largest mass murder in county history.
It’s unclear what the impact will be from the improper jail recordings by Global Tel Link (GTL), the company managing phone calls inside Orange County jails under a contract with the Sheriff’s Department.
Elsewhere in California, improper law enforcement recording of inmates’ protected conversations has led to reduced and dismissed charges against criminals, including a reduced sentence in a murder case.
Jail officials say they record calls so they can monitor illegal behavior within the jail and investigate crimes. Investigators and attorneys can also gain access to the calls to use as evidence.
Attorney-client conversations, however, are sacrosanct in the American legal system, protected to ensure a person’s constitutional right to a fair trial and against self-incrimination. In California, it is a felony for anyone to record or eavesdrop without permission on inmates’ phone calls with attorneys, doctors, or clergy.
The OC jail phone recording issue became public in mid-August after Greg Boston, director of inmate services for the Sheriff’s Department, disclosed it while testifying in an attempted murder case.
Most of the information about the jail phone recordings and who accessed them are in the hands of a few attorneys and a judge, and is protected by court orders from being released publicly.
Of the 1,079 phone calls that were improperly recorded, at least 58 of those calls were played, downloaded or burned to a disc by jail personnel. Some of those calls were turned over by the department to other law enforcement agencies.
Shortly after the breach became public, the county Public Defender’s Office sued to secure data on the inmate recordings and prevent any further violations of attorney-client privilege. Superior Court Judge Gregg Prickett ordered the Sheriff’s Department to turn over all the recordings to the court, destroy digital copies and halt any separate inquiries into the breach.
Instead, a special master appointed by Prickett – attorney Christopher James Day – will be in charge of the data and recordings, identifying how many criminal defendants had their calls improperly monitored, and how many criminal cases could be impacted.
While defense attorneys are already making comparisons to the misconduct in the informant scandal, so far judges have taken a cautious and more limited approach to the jail recordings issue.
Prickett suggested in court last week that he’s not ready to take the scope of his inquiry any further, denying a request from Deputy Public Defender Sara Ross to seek additional evidence of the unauthorized recordings that GTL handed over to attorneys in a separate court case.
GTL is the nation’s largest jail phones vendor, and contracts mainly with local and state governments, who operate most of the jails and prisons in the United States.
The Orange County Board of Supervisors is in charge of the jail phones contract – including whether to cancel it and switch to another vendor. The five-member board also oversees the county’s legal defense of lawsuits and the Sheriff’s Department’s budget.
At a meeting last Tuesday, supervisors largely focused on what the county’s legal exposure could be because of the improper recordings. One supervisor, Todd Spitzer, is calling on the county to rescind its contract with GTL altogether, though so far he is the only supervisor out of five to have publicly supported such a move.
Sheriff Sandra Hutchens has said the improper recordings are a result of a third-party error by the company, and pushed back at suggestions that her department intentionally violated inmates’ rights.
“I do not believe that any department members did anything wrong,” Hutchens wrote in a department-wide memo Aug. 21.
In a separate, public statement on Aug. 23, the Sheriff said she is “confident that those who look at this situation objectively will recognize an error does not constitute a conspiracy.”
Supervisors directed Kevin Rogan, an attorney who works for them heading up the Office of Independent Review, to provide assistance to the special master and determine the county’s legal exposure.
Because of Prickett’s court order, the county is limited in how it can respond to or investigate the unauthorized jail recordings. The judge has asked Rogan to appear in court on Sept. 13 to meet with the special master and determine what, if any, role the county can play in the court’s inquiry.
The Public Defender’s Office – which represents defendants who can’t afford a private attorney – has opposed that meeting from occurring at all, arguing the OIR’s involvement would further erode the confidentiality of defendants whose calls were improperly recorded.
They also raised concerns about the presence of the county’s top lawyer, County Counsel Leon Page, arguing he has an inherent conflict of interest because his office represents the Board of Supervisors, the OIR and the Sheriff’s Department.
The issue is also playing out in the attempted murder case of Joshua Waring, whose attorney Joel Garson is asking for his case to be dismissed based on the unauthorized recording of his phone calls.
Waring represented himself in court for a period of several months, during which time the jail recorded 1,400 of his calls, despite a judge’s order granting him unmonitored phone calls.
There are also two other calls that jail officials recorded between Waring and his alternate defender, Garson said.
County officials say it wasn’t until GTL executives were called to testify in Waring’s case in late August that they knew the company had committed the same error – recorded phone calls that were supposed to be private – at facilities in two Florida counties.
How Far Do the Violations Go?
In a July letter to the Sheriff’s Department, GTL disclosed that it improperly recorded 1,079 private inmate calls between 2015 and 2018.
The company cited a “human error” during a software upgrade where the company failed to upload a database of 1,300 phone numbers that should have been automatically blocked from recording.
Of the 58 calls the company said were accessed by jail personnel, at least ten of those calls have been tied to a specific criminal defendant.
In addition to Waring’s case, Garson said there were 34 improper recordings of attorney-client conversations related to the triple-murder case of Shazer Fernando Limas, who is accused of killing his wife and two children.
If a defendant’s right to a fair trial is violated, a judge can take a number of actions, including reducing charges or throwing out a case altogether. Sometimes, prosecutors offer more a favorable plea deal to a defendant, which they take, or toss out charges altogether, before the judge rules on whether to reduce or toss charges.
In the OC informant scandal, Goethals threw out the death penalty for mass murderer Scott Dekraai, who killed eight people, after ruling the sheriff’s failures to turn over evidence meant Dekraai could not receive a fair trial.
The families of Dekraai’s victims waited nearly six years, from the time of the killings in 2011 to Dekraai’s sentencing to life in prison in September 2017.
Defense attorneys say the impact could be far broader than the 1,079 calls identified by GTL, and question whether the figures provided by company are accurate.
All phone calls from the jail are recorded, unless a number is specifically blacklisted. Garson says the 1,079 improper recordings identified by GTL include just seven recorded calls to the Public Defender’s office, suggesting that over three years, inmates only made seven total calls to the Public Defender. Company executives responded that their software only records what inmates dial.
Garson also questions the Sheriff’s claim that they didn’t find out about the breach until June. He questioned how the department did not know when its employees were reviewing conversations between inmates and attorneys over three years.
Some of the sheriff’s employees who accessed the calls also have ties to the informant scandal, according to documents cited by the Orange County Register, including Investigator William Beeman and deputy Jacob Bieker.
Within county jails, the Custody Intelligence Unit – a unit formed in 2016 after the Special Handling Unit was dissolved – is responsible for monitoring most jail phone calls, said Sheriff’s spokeswoman Carrie Braun.
Personnel across other jail units may also have access to the calls depending on their needs, such as investigators working on criminal cases, Braun said. She did not know how the department determines who receives access to jail call recordings.
Since the breach was discovered, the department has restricted the number of personnel who have access to phone recordings, Braun said. They have also begun meeting with GTL monthly “to ensure contractual agreements are being followed.”
Investigator Tom Dominguez, who leads the sheriff’s deputies’ union, believes deputies acted in good faith and said GTL’s error is unfortunate given the department’s efforts to change public perception after the informant scandal.
“What’s happening here is different, but it still brings up issues of trust in [the department and] correctional facilities,” said Dominguez, president of the Association of Orange County Sheriff’s Deputies (AOCDS).
Dominguez was not aware of any specific training for jail deputies related to attorney-client privilege but believes if there is a training issue, “the Sheriff will address it.”
“When these guys signed up to be deputy sheriffs…this is not what they signed up to do – analyze these complex legal issues,” Dominguez said.
Kate Corrigan, a criminal defense attorney and past president of the Orange County Criminal Defense Bar Association, said awareness of those legal issues should be a top priority for the Sheriff’s Department after the constitutional violations that were exposed in the informant scandal.
“They just went through the snitch scandal. They should be extra sensitive,” Corrigan said.
GTL’s software allows jail personnel to access phone recordings from an internet browser, meaning they could potentially access calls from devices outside of the jails. Braun said Orange County jail personnel can only access those recordings from a department-issued device.
Braun did not respond to a question about what training is provided to deputies who have access to phone recordings.
The “Do Not Record” List
Garson said neither he nor any private defense attorneys he talked to were aware of the “do not record” list or how to get a phone number on it.
“That’s why the list of attorneys is so small – nobody has ever heard of it,” Garson said.
Corrigan said she frequently receives memos and notices from the federal court and other agencies about policy changes affecting attorneys to distribute to members of the criminal defense bar.
The Sheriff’s Department “certainly did not make an effort” to notify attorneys, said Corrigan.
Braun disagrees, and said the list is “well known in the judicial community.”
“The fact there are 1,300 numbers labeled as ‘do not record’ is a testament to the widespread knowledge of the system,” Braun said. Since the breach, “The Sheriff’s Department has reached out to various legal entities to ensure that all numbers that should be included are in the system.”
The department has no formal policy for how someone can request a number be blocked from recording. Asked if the department notifies attorneys or inmates of the “do not record” list either verbally or in writing, Braun said she was not aware of any formal notification process.
“Either attorneys can make requests directly to the Inmate Services Division, and either our staff can do that, or GTL can do it if a request goes directly to them,” Braun said.
Orange County jail facilities housed an average of 6,518 inmates each day in July 2018, according to Braun. Of those inmates, 3,126 had not been sentenced and 3,392 were already sentenced for a crime.
Jails run by the Los Angeles County Sheriff’s Department (LASD), on average, housed 17,120 inmates each day in the first quarter of 2018, according to figures posted on the department’s website.
Its “do not record” list has approximately 2,400 phone numbers, said LASD spokeswoman Nicole Nishida.
LASD has a policy for their “do not record” list that automatically adds phone numbers from the Los Angeles County Bar Association, Los Angeles County Public Defender’s Office and attorneys’ phone numbers provided by a court-appointed conflict panel.
There are questions about whether attorneys should have been aware their calls were recorded, or implicitly consented to it.
All calls from Orange County jail facilities include a prompt that states calls may be “subject to monitoring and recording.” When a call is on the “do not record” list, that prompt disappears.
Corrigan said if people sign up for unmonitored calls in the Santa Ana city jail, where federal detainees are housed, the call includes a prompt that explicitly states the call is not being recorded. Inmate phone calls at the Santa Ana jail are run by a different vendor from GTL.
In Los Angeles County, calls include a prompt that states, “This call is being recorded, press one on your phone to acknowledge that your call is being recorded,” said Nishida.
GTL’s Contract In Question
The county has told GTL its mistake could lead to the reconsideration of their entire contract. In November, supervisors will decide whether to continue the contract with one-year renewals for the following six years.
The improper recordings could lead to legal liability for the county, said supervisor Andrew Do.
“There could potentially be consequence to the prosecution…and/or maybe legal liability on the part of the county” in the Waring case, Do said at the supervisors’ meeting Tuesday. “We have to be very careful when we talk about that issue.”
Spitzer called on his colleagues to end the contract, noting the contractor “did this in other states, and this was never brought to the board’s attention.”
Spitzer said he would place it on their agenda for an upcoming meeting. But he gained no traction publicly among his colleagues, and Spitzer would need two other votes to kill the contract.
Supervisor Lisa Bartlett suggested there is not enough time to run a competitive bidding process before the November renewal, saying there are limited number of companies who provide jail phone services.
GTL owns 50 percent of the market for inmate phone service at correctional institutions, according to the New York Times. Its main rival, Securus Technologies Inc., owns 20 percent of the market.
When the county last solicited bids for the contract in 2012, three companies applied: GTL, Securus, and IC Solutions.
Issues with the unauthorized recording of attorney-client phone calls in correctional facilities are not new.
Securus was under fire in 2015 after the news website The Intercept found the company recorded at least 14,000 attorney-client phone calls, many of which were leaked to the website’s reporters. After the article, advocacy groups sued the company and officials in Travis County, Texas, forcing the county to change its policies and add additional safeguards.
In 2006, federal prosecutors in San Francisco dropped gun-possession charges against a man after a prosecutor listened to 35 seconds of a recorded jail call between a defendant and his attorney, according to the Associated Press.
Similar issues have been reported across the country, from San Diego to New Orleans.
Contact Thy Vo at tvo@voiceofoc.org and follow her on Twitter @thyanhvo.