LOUISVILLE, Ky. (WDRB) – When murder defendant James Mallory’s defense attorneys talked by phone with him from Metro Corrections about his case in recent months, they assumed their conversations were confidential.
But Mallory's defense team told a judge this month that not only did the jail record the conversations, they were listened to by someone in the Jefferson Commonwealth's Attorney's office – which is seeking to have Mallory executed for a 2012 murder.
"We just assumed all calls are protected when they are between a defendant and a lawyer," Eric Eckes, a Cincinnati attorney for Mallory, said in an interview.
The lack of privacy doesn't just apply to attorney-client conversations in Louisville. At least one such case has occurred in Lexington, and the state Department of Public Advocacy is now reviewing the practices in jails across Kentucky’s 120 counties and whether any intercepted phone calls have been given to prosecutors.
At issue is whether prosecutors or police have listened to calls about cases over the years and used information to gain the upper hand in working out plea-bargains or learning about evidence. Â
Complicating the review is that inmates are constantly moved around the state and each jail has its own procedures, said Melanie Lowe, the department’s general counsel. It's not yet known when the study, which began last November, will be complete.
"I’m afraid of how widespread this could be," Lowe said. "We unfortunately believe this is a statewide problem."
In Louisville, jail officials defend the system. They 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.
"You would think if a lawyer were hearing that sort of message, they would call the facility and ask if there was a way to have a confidential communication," said 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.
"We are not listening to protected calls, or privileged calls," he said.
Durham said Metro Corrections publicized the call procedures in a newsletter for Kentucky criminal defense attorneys, with the state Bar Association and on the jail's website.
But Eckes and another attorney for Mallory, Gregory Coulson, work outside Louisville and didn’t know about the local procedures.
Mallory is accused of shooting to death 15-year-old Gregory Holt in 2012 during a home invasion. Mallory's attorneys have 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," according to a motion in the case.
In a Feb. 6 hearing, Coulson, who is based in Lexington, said they had not been able to talk to Mallory in weeks because "we can't be sure what's being listened to and what's not listened to."
Gibson told the attorneys she has the power to "issue most any sort of order" to Metro Corrections in the Mallory case but not "as it relates to the greater issue globally, how it impacts other defendants or how the system may have flaws."
Lowe began looking into the statewide issue late last year after being alerted to a murder case in Fayette County where Lexington police and jail employees allegedly monitored and downloaded dozens of calls between the defendant and his public defenders over three years. Â
She said there are concerns about whether information from the calls may have been used by law enforcement and prosecutors in crafting plea-bargains or learning about evidence. Â
In the Lexington case, defendant Dawan Mulazim was convicted in May 2018 of robbery and tampering with physical evidence and the jury could not reach a unanimous ruling on the murder charge. Mulazim is scheduled for a re-trial in October. In the meantime, defense attorneys discovered that dozens of their phone calls with Mulazim were recorded and listened to by police between 2015 and 2018, according to court records.
Attorneys have filed motions asking a judge to order the phone calls turned over. And attorneys in that case have since discovered other defendants in the Fayette County Detention Center have had their phone calls recorded and listened to by law enforcement.
Lowe said a Lexington jail official told her they have a separate line for attorneys but the public defender's office had not provided their attorneys' phone numbers. The attorneys thought they had provided the numbers. The Lexington jail also has a warning that the calls are being recorded.
But Lowe said jails have different recordings and it's unclear if some of the attorney lines also issue that same warning. And, she said, attorneys have assumed, especially when they provide their phone numbers, that the calls are confidential.
"Without some clear, bright line rule that is statewide it's almost impossible to ensure that your calls are not being recorded," Lowe said. "I think it's a huge problem."
Calls used as evidence?
The issue was brought up in Jefferson County in 2014 when the Louisville Public Defender's office learned Metro Corrections was recording jail phone calls with attorneys, which prosecutors and police had access to.
Metro Corrections, according to a memo from the public defender's office at the time, was not following Kentucky administrative regulations or its own policies to ensure that all attorney-client calls were not recorded.
"It appears that LMDC does not attempt to block inmate calls to retained counsel, appointed counsel not associated with the Public Defender (typically, conflict counsel) or with public defenders who may accept calls by inmate clients on their cell phones or at home; presumably, then, calls to attorneys under these circumstances have been and are presently being recorded and monitored," Dan Goyette, then head of the public defender's office, wrote in a May 2014 memo obtained by WDRB News.
He added that Metro Corrections allowed Louisville Metro Police and prosecutors access to the calls on their computers.Â
At the time, the public defender’s office, police, jail officials and prosecutors worked out a policy that took "steps to ensure, for the first time, that outgoing calls from inmates to their attorneys are not recorded or monitored," according to the policy.
The policy detailed how "upon request" of attorneys, Metro Corrections would block recording or monitoring outgoing inmate phone calls if the lawyer filled out the proper forms.Â
That system is separate from the one inmates use to make calls to family or friends.
"We realized it was not well publicized that lawyers could opt out of monitoring,” Durham said of the 2014 changes. Hundreds of attorneys' phone numbers have been registered in the five years since, he said. Those calls are not recorded or monitored.
Attorneys can also come to the jail and have private conversations with clients, he added.
Durham said he could not comment on the Mallory case. The jail agreed in court to work with Mallory's attorneys.
In that case, it was the prosecutor's office that recently brought the issue to light, notifying Mallory's defense attorneys that the calls had been recorded and listened to by a law clerk in the office.
"I don’t think we heard anything you would be concerned about," Assistant Commonwealth's Attorney Dorislee Gilbert told Mallory’s attorneys before the Feb. 5 hearing.
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.
"As lawyers, we have an ethical obligation to stop listening regardless of the fact they didn’t use a secure line," he said.
As for whether lawyers effectively waive attorney-client privilege by talking on a recorded and monitored phone line, lawyer Eckes said he has "heard that argued before but I don’t think that would carry weight with an actual court."
Lowe said listening to the calls is a violation of attorney-client privilege, which guarantees the Fifth Amendment right against self-incrimination and the Sixth Amendment right to legal counsel.
Coulson agreed, arguing that "a simple warning at the beginning of a phone call that's present in every jail call that we have across the state and country does not overcome that privilege and confidentiality."
Lowe said the department of public advocacy is contacting each jailer and state to see what their procedures are and hopes to spread the word.
She said jailers have told her department that they get requests for all of an inmate's calls from prosecutors and they provide it, often without knowing if there are attorney-client conversations.
State law, she says, currently puts the responsibility on the defendant and attorneys to ensure they are speaking on a confidential line.
"The fact that not only can the police, but possibly the prosecutors or the jailers or other individuals, listen (to jail phone calls) compromises confidentiality," Lowe said. "It compromises an individual's right to counsel."
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