SUNDAY EDITION | Shelbyville police accused of breaking law in recording attorney-client conversation
"Everyone I spoke to was shocked and had never heard of anything like this," said Amy Robertson, who works for the Shelbyville Public Defender’s office.
SHELBYVILLE, Ky. (WDRB) -- When prosecutors last month turned over evidence police had gathered against a 17-year-old accused of assault to the teen's defense attorney, Amy Robertson, the first-year lawyer could not believe what she saw.
Included, along with typical evidence such as the statement from the victim and medical records, was a recording of Robertson's entire conversation with her client as she met with him on Oct. 27 at the Shelbyville Police Department.
"Let me ask you something, can they hear us?" the teen asked Robertson of police, according to a copy of the recording.
"They said they stopped the recording," she responded before the two talked about his case. The teen had asked for an attorney as police questioned him about an assault.
"I'm kind of watching in disbelief at first," Robertson said in an interview of hearing herself talk to her client in the police department's interrogation room. The video freezes but the audio continues recording. "I'm assuming … the officer will stop (recording) once he let me in there, but that was not the case. I realized that our entire conversation, word for word, was on the tape."
As is typical, police had told Robertson the discussion with her client would not be recorded.
"Everyone I spoke to was shocked and had never heard of anything like this," said Robertson, who works for the Shelbyville Public Defender's office. "Our position on this is that any case where this happened would have to be dismissed. They basically had access to our entire defense strategy."
And the public defender's office is worried this is not an isolated incident.
The Shelbyville Police Department recording system in the police interrogation room had been recording non-stop from the time it was installed in July until it was repaired earlier this month.
Shelbyville Circuit Court Judge Charles Hickman on Dec. 11 ordered the police department to preserve "all electronic recordings" involving any criminal cases created during the malfunction" of the equipment in the interrogation room.
Melanie Lowe, directing attorney of the Shelbyville Public Defender's office, said she believes the recordings could be a criminal violation, breaking Kentucky's "eavesdropping" law, which bars people from recording a conversation between two individuals if neither of those people know they are being recorded.
And Lowe said state officials need to investigate how it happened and if it affects other cases.
"It is a highly unusual and egregious mistake," she said. "We certainly would like to know if there is any additional footage we need to have in our cases."
Lowe said it is typical for police to allow defendants to talk to their attorneys via phone or to family members in the interrogation room.
"That's been recorded," she said, adding that the teen Robertson represented talked to his mother in the department's interrogation room, and was told it would not be recorded. A video recording of that discussion was also turned over by prosecutors. "That is unbelievable."
But Shelbyville Police Chief Istvan Kovacs said the recording was unintentional and was the result of a mistake made when a new system was installed earlier this year.
And he doesn't believe any other cases were affected, saying "nobody else has been in the interrogation room" for the last six months as most interviews of suspects happen on the scene.
In addition, Kovacs said police never heard the audio in the juvenile's assault case.
"We didn’t know it was recording," he said. "We never listened to it."
Shelby County Attorney Hart Megibben said he has not heard that any other cases have been affected, but his office would disclose any other recordings if discovered.
While Lowe had never heard of something like this happening in Kentucky, a similar issue is ongoing in Springfield, Illinois.
The police department there recorded in its interrogation room nonstop since a new system was installed in February until it was fixed in October, according to a Dec. 6 story by The State Journal-Register.
After the mayor ordered an investigation, the city inspector general determined the recordings were unintentional and would not affect any criminal cases, according to the newspaper.
The city inspector did not answer questions about whether the city could be sued for recording people without their knowledge or a possible breach of attorney-client privilege, the newspaper reported.
Lowe said she has asked both the Kentucky State Police and Attorney General's office to look into the issue, without success.
Terry Sebastian, a spokesman for Attorney General Andy Beshear, said in a statement that the public defender's office did call them about the issue but "no formal request for action was made at the time and we have not received any formal request of written information on the overall matter since.
"If we do, we will thoroughly review."
After discovering the recording, Robertson told prosecutors, who expressed surprise but said they had not listened to it and declined to dismiss the case.
Meanwhile, the teen remained incarcerated in a juvenile detention center in Lexington.
The Shelbyville County Attorney's office pushed for the juvenile to be charged as an adult with felony assault, alleging he and other juveniles robbed a man and the teen struck the victim in the head with a gun.
A police report of the incident says several witnesses identified Robertson's client as assaulting the victim. However, one witness denied that Robertson's client had anything to do with the robbery and assault until a Shelbyville police detective seemingly threatened him with prosecution.
"You obviously have more to lose than anyone else because you're on an ankle bracelet and you probably have time on the shelf. And the judge has already told you if you go to jail for a violent crime, you're going to big boy jail," the detective told the witness, according to a video of the interrogation.
After a 20 minute break, the officer came back into the room and the witness told him that Robertson's client was involved.
On Dec. 1, the public defender’s office asked a Shelby District Court judge to dismiss the case because of "gross police misconduct" and argued that police may have broken the state's eavesdropping law, according to a video of the hearing.
A prosecutor told Judge J.R. Robards that it was an accident and neither police nor the county attorney's office had viewed the recording, and she noted it was turned over to the defense.
"No one was trying to hide anything here," said Assistant Shelby County Attorney Melinda Zeller. The mistake was made by a technician who installed the system, prosecutors and police have said.
Robards declined to dismiss the case or release the juvenile from custody, but said he would review the allegations.
But Robertson said she had found something else surprising in the evidence turned over by prosecutors: the victim had identified his attacker by name -- and it wasn't her client.
She again made a motion asking a Fayette County judge to release her client from custody, alleging misconduct by investigators.
And earlier this month, after Robertson played part of the victim's statement in a hearing, a judge in Lexington -- where the teen was being held -- ordered him released.
Shortly after that hearing, prosecutors dismissed the case.
Megibben, the Shelby County Attorney, declined to comment because it is a juvenile case.
The juvenile waived confidentiality, allowing his attorneys to talk about the case with WDRB.
Police Chief Kovacs stood by his officers but said he could not comment further because it is a juvenile case.
"I don't think it should have been dismissed," he said.
Robertson said her client maintained his innocence since his arrest and spent his 18th birthday and Thanksgiving in custody.
"I think there were several instances of misconduct in this case," she said. "And we had to fight tooth and nail to get any kind of relief."
Copyright 2017 WDRB Media. All rights reserved. Reporter Travis Ragsdale contributed to this story.