A Question of Confidentiality

There is always that fear, that chance that someone, somehow, is listening.

For the criminal defense attorneys, public defenders and others who must visit their clients in Los Angeles County jails, the chance that their conversations are being overheard is a constant possibility and a potential threat to every case.

The lawyers fear their cases could be compromised by eavesdropping by inmates, visitors or even sheriff’s deputies. If snitches somehow overhear or illegally receive information, they could fabricate confessions, thus forcing changes in trial strategy and eroding the attorney-client privilege necessary to building a solid defense.

The issue is particularly acute today as the federal government proceeds to investigate potential terrorist activities. A month ago, Atty. Gen. John Ashcroft instituted a new Justice Department policy allowing the federal government to monitor communications between attorneys and federal detainees when there is “reasonable suspicion” to believe they may be facilitating terrorist acts.

Although the policy currently applies to only about a dozen inmates housed in federal jails and prisons, criminal defense attorneys are increasingly worried that the government is proceeding down a slippery slope that could in time erode all inmates’ rights to attorney-client privilege, regardless of where they are incarcerated.

The 6th Amendment guarantees suspects the right to counsel in the criminal process, while the 4th

Amendment grants the right to privacy, due process and privileged communications with their lawyers.

“I just can’t imagine that lawyers and clients could have the same kinds of conversations if they know that someone’s going to listen to it,” said Paul L. Hoffman, a Venice civil rights lawyer. “You’re never going to get anyone . . . who’s going to talk about future criminal activity. It’s completely preposterous.”

Others believe the federal government is using the Sept. 11 terrorist attacks to change policies that politicians and others have long found objectionable.

“Using this [the Sept. 11 attacks] as a reason to do this I don’t believe is in good faith,” said Culver City-based criminal defense attorney Gigi Gordon. “They want to carve out this gigantic exception” to the attorney-client privilege. “It’s disgusting.”

Local public defenders and other lawyers say that, although they strongly object to the new federal policy, they already have safeguards in place when they interview clients housed in the federal or state systems.

First, most say they prefer the private attorney booths at such newer jails as Century Regional Detention Facility or Twin Towers. There, attorneys can interview clients in private rooms as opposed to the long rows of open tables at older facilities, such as Men’s Central Jail, thus limiting the possibility of eavesdropping.

Second, some attorneys say they refuse to discuss their clients’ cases on the telephone, knowing that those collect calls from the jail to their offices could be recorded.

If they must interview clients in open rooms or court lockups, attorneys say they ask their clients to speak softly and not divulge details of their cases.

On a recent day, Luis Carrillo, a Montebello defense lawyer, visited an inmate at Century Regional Detention Facility in Lynwood. He presented two forms of identification to the deputies: his driver’s li cense and his California Bar Assn. card. Deputies ran a computer check on Carrillo, then searched his briefcase, even flipping through the pages of a yellow legal pad. He was told to place his cell phone in a locker, then he walked through a metal detector. Only then was he escorted to an attorney room.

When his client arrived, the two spoke through a microphone in a private room, largely barren and about the size of a large closet with stainless steel stools. They were separated by floor-to-ceiling plexiglass. Deputies remained outside a see-through door, which Carrillo closed at times.

“How’s it going, brother?” Carrillo asked his client, a man charged with the attempted murder of a police officer.

Carrillo frequently held up documents for the inmate to read through the plexiglass.

“This is much better than C.J.,”

Carrillo said, referring to the Men’s Central Jail in downtown Los Angeles. “The attorneys and clients are so close together there, you can overhear, and then there’s the danger the sheriff’s [deputies] can overhear.”

Moreover, Carrillo’s client was brought to the interview room in just a few minutes. At Men’s Central, lawyers say, that process can take much longer, particularly if the jail is in a lock-down.

Marguerite Downing, a public defender in Inglewood, said she frequently interviews inmates being held in the holding areas of courthouses where sheriff’s deputies typically are on duty. She says she knows the deputies whom she can trust.

“From my perspective, there are deputies I’m fairly comfortable understand their job and my job,” Downing said. “Their job is security. They don’t hear what they

hear, if you know what I mean.”

But there are others, she says, whom she doesn’t trust in the same way. “You know the expression, ‘The walls talk,’ ” she said. “You have no idea what’s being said or who’s listening. I tell my client to hold off or wait” to talk about their case.

Then there is the Metropolitan Detention Center, the federal facility downtown. To attorney Donald Re, it represents the best and the worst for attorneys and clients.

On one hand, the facility has several private rooms and the wait isn’t terribly long for them. On the other hand, inmates under tight security restrictions--called special administrative measures or SAMs--are shackled so they cannot typically flip pages of documents. Re said he always worries that his conversations could be monitored, even though that would be illegal.

“You never know if they’re listening or not,” Re said. “That bothers me the most.”

Although officials deny eavesdropping on attorney-inmate conversations, lawyers say they nonetheless have their suspicions. Michael Judge, head of the public defender’s office, said he has received assurances that conversations won’t be recorded unless the Sheriff’s Department receives a highly unusual court order granting permission to wiretap because of evidence that lawyers are aiding and abetting a crime.

“When you have the attorney general threatening to invade the sanctity of the attorney-client conversations, that causes a great deal of alarm, because the only way we can give proper advice to our clients is if we--and they--feel free to engage in an honest, frank discussion,” Judge said.