James Mallory in court

James Mallory appears in Jefferson Circuit Court.

LOUISVILLE, Ky. (WDRB) – A judge has declined to dismiss the murder case against James Mallory or disqualify the Jefferson Commonwealth Attorney’s office over allegations the prosecution improperly listened to dozens of jail phone calls between Mallory and his legal team.

Attorneys for Mallory had asked Jefferson Circuit Court Judge Susan Schultz Gibson to dismiss the 2012 murder case for prosecutorial misconduct, arguing there is “no possible explanation” for the prosecution listening to calls where Mallory and his legal team discussed privileged information such as witnesses and trial strategy.

But while Gibson concluded an intern with the commonwealth’s attorney’s office listened to three jail recorded calls with Mallory and his attorneys, there was “absolutely no discussion” of witnesses, defense strategy or anything that would prejudice Mallory.

And the commonwealth’s attorney’s office has said none of the information from the calls was passed on to the prosecutors handling the case, Gibson noted.

As for the dozens of other calls the employee in the commonwealth’s attorney’s office listened to, Gibson – who listened to recordings of the calls – ruled they were between Mallory and an investigator for his legal team and it was not a “knowing intrusion into the attorney-client privilege.”

The judge ruled it was unclear in many of the calls that the investigator was part of Mallory’s legal team and both sides inferred they knew they were being recorded.

In addition, the judge noted in her ruling that unless a special line set up for attorneys is used, other calls made from the jail play three warnings that it is being recorded and is not private. 

“The Court finds that by continuing to converse over a recorded line, after acknowledging that the communications are not secure, the Defendant has waived any privilege,” Gibson ruled.

In a court hearing Thursday, Mallory’s attorneys, Eric Eckes and Greg Coulson, said they would likely appeal Gibson’s ruling to the state Supreme Court.

"We're disappointed by the ruling, believe that it's an incredibly important issue, and are seeking appellate review," Coulson said after the hearing. 

The trial, which was scheduled for November, has now been postponed until next spring. 

This case has already been delayed 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.

The phone calls issue 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 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 dozens of calls lasting a total of more than 24 hours had been recorded by the jail and listened to by the legal clerk.

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.

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

In Gibson’s ruling, she said there is “no question” calls between Mallory and his attorneys were heard by the legal clerk. But the discussions, even if heard by prosecutors, would not prejudice Mallory’s case, she ruled.

She also declined to remove the death penalty as a sentencing option, which had been another request by Mallory’s defense.

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

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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.