Inquiry Asked : Jail Taping of Inmate’s Call Debated

Defense attorneys expressed concern Friday about inmate privacy at the Newport Beach jail after officials acknowledged that a telephone conversation between a suspect and his lawyer had been tape-recorded.

Attorney Barry Tarlow, who is asking for an investigation, claimed that the suspect had no idea that the conversation was being overheard. Such recording, without permission, is a crime under California law.

Newport Beach City Atty. Robert Burnham, who is looking into Tarlow’s complaint, vigorously defended jail procedures. Newly arrested suspects may use speaker phones to make calls, or, if they request privacy, may use a telephone in a private, soundproof room, Burnham said Friday.

Some Calls Not Taped

Conversations on the speaker phones are taped, but those in the private rooms are not, Burnham said.

Tarlow’s complaint stems from a phone conversation he had with his client, Michael L. Maddox, who was arrested on suspicion of masterminding a telephone-solicitation fraud that netted $7 million.

Maddox called from a speaker phone at the Newport Beach jail, Tarlow said, but thought that the conversation was in private. Maddox had no idea that he was being tape-recorded and did not see a sign posted in the area advising suspects that private rooms are available for calls to lawyers, Tarlow said.

But Burnham replied that anyone using a speaker phone could have “no reasonable expectations of privacy.” Inmates go to one of three screened areas, a jailer dials the number requested, and the conversation easily can be overheard by people nearby, according to jail officials.

“It’s kind of like yelling out your front door,” Burnham said. “There are people all around.”

Public defenders and private lawyers who were told about the incident were concerned but cautious because of the lack of details about the circumstances of the tape-recording. All the lawyers contacted, including Burnham, agreed that surreptitious taping of lawyer-client calls is illegal.

Paul Stark, head of the criminal defense section of the Orange County Bar Assn., said the critical question is whether detainees know about their choices.

Defense lawyers regularly find that conversations between defendants and people other than their lawyers--relatives or bail bondsmen, for example--are overheard by jail authorities. Whether those statements or admissions can be used against defendants depends on the circumstances and often is a matter of dispute, Stark said.

Most people don’t ask for the private phones, when they are available because, Stark said, they “just don’t think about it.”

Orange County Public Defender Ronald Y. Butler condemned any secret tapings of lawyer-client conversations, saying they are clearly in violation of state law.

In the Maddox case, Butler said, there were indications that the taping may have been “inadvertent.” But its use--Newport Beach police turned it over to FBI agents, who tried to use it to deny Maddox bail--”waters down that argument,” Butler contended.

Butler discourages any substantive telephone conversations between lawyers and inmates, his chief assistant, Carl C. Holmes, said.

“Our attorneys are instructed not to have meaningful discussions over the phone. As a general rule, we avoid those conversations. My guess is that every police department in the county monitors phone calls,” Holmes added.

But a spot survey of other jails in the county indicate that none follows the practices of Newport Beach.

In Huntington Beach, the numbers that inmates call are recorded, but not the calls themselves, according to Howard Subnick, a detention officer.

Suspects and guards are videotaped in the booking area of Orange County Jail, but no audio recordings are made, Lt. Richard J. Olson said.