James Mallory in court

James Mallory appears in Jefferson Circuit Court.

LOUISVILLE, Ky. (WDRB) – Prosecutors seeking to have James Mallory executed for a 2012 murder listened to more than 100 phone calls between Mallory and his defense team while the defendant was in Metro Corrections last year, his attorneys claim.

In a motion filed this week asking a judge to dismiss the murder case for prosecutorial misconduct, Mallory’s defense said there is “no possible explanation” for the prosecution to listen to the calls, where Mallory and his legal team discussed privileged information such as witnesses and trial strategy.

"Given that it is clear from the calls that the conversations were privileged, it is difficult to fathom another purpose for the Prosecutor to continue to listen to the calls for any reason other than to gain confidential, privileged information," wrote defense attorneys Eric Eckes and Greg Coulson. "The Prosecutor has committed a serious and shocking violation of basic ethical standards."

The motion to dismiss the case is scheduled to be heard in court on Monday. 

Similar issues have prompted the dismissal of other cases throughout the country, with courts ruling governmental intrusion into the attorney-client relationship and the benefit the prosecution had on trial strategy was a violation of the rights of defendants.

The issue in Mallory's case first came up earlier this year when the prosecutor's office notified Mallory's defense attorneys that some of their calls had been recorded and listened to by a law clerk in the office.

At the time, Mallory's attorneys asked Jefferson Circuit Court Judge Susan Shultz Gibson for an order to hire an investigator to review the jail's record access logs to determine the "extent of the breach into privileged confidential communication."

The investigation looked at the last year - Mallory has been incarcerated since 2012 - and found 120 calls lasting a total of more than 24 hours had been recorded by the jail and monitored by the prosecution. The majority of the calls were between an investigator for the defense and Mallory. 

In February, Jefferson Commonwealth’s Attorney Tom Wine said prosecutors "have an ethical obligation to stop listening" when they realize an attorney is talking to their client. He said one of the problems is when an inmate calls a family member and patches them through to an attorney.

Prosecutors, he said, sometimes don't immediately know an attorney is on the three-way conversation but stop listening when they realize it.

But in this case, according to Eckes and Coulson, "it defies logic to suggest the Prosecutor did not intentionally invade the attorney-client relationship based on the sheer volume of calls that were repeatedly listened to," according to the motion.

And they said the investigation with the jail concluded the commonwealth attorney's office listened to calls the night before the February hearing in front of Judge Gibson about the issue.

Wine declined to comment on Thursday, saying the office would file a written response to the judge.

Metro Corrections officials note that there is a special line set up for attorneys and that other calls made from the jail play three warnings that it is being recorded and is not private.

If the attorney has not provided a phone number to Metro Corrections and asked that the call not be monitored, it will be recorded, can be made available to prosecutors and possibly used as evidence, according to Steve Durham, a jail spokesman.

He said that calls to lawyers not on the protected line – in which they have provided their credentials and phone number – are not privileged and there is no law preventing the conversations from being recorded.

Mallory is accused of shooting to death 15-year-old Gregory Holt in 2012 during a home invasion.

If Gibson declines to dismiss the case, Mallory’s attorneys have asked that the Jefferson Commonwealth’s Attorney’s office be removed and prosecutors from another county be brought in. And they have requested the death penalty be removed as a possible sentence.

This case has already been postponed multiple times, in part because an attorney with the Louisville Public Defender’s office representing Mallory's co-defendant is under investigation for allegedly concealing key evidence in the case.

Mallory's attorneys say this issue was also discussed in calls listened to by the prosecutor's office.

"This case has involved many hard to fathom (and perhaps unprecedented) twists and turns," Eckes and Coulson wrote. "There has been ample behavior in this case that should not be condoned. It is time, with this new flagrant violation of Mallory's rights coming to light, for drastic action - this case must be dismissed."

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Digital Reporter

Jason Riley is a criminal justice reporter for WDRB.com. He joined WDRB News in 2013 after 14 years with The Courier-Journal. He graduated from Western Kentucky University. Jason can be reached at 502-585-0823 and jriley@wdrb.com.