State High Court to Rule on Jail Phone Taps

Prosecutor Thomas Rogers was convinced that Christine Loyd had killed her mother out of greed. But he lacked enough evidence to charge the Bay Area woman, who was already in jail in another murder case.

Rogers solved the problem by taping calls Loyd made from jail. The tapes were played to the jury that convicted her.

The California Supreme Court will soon decide whether eavesdropping by prosecutors on conversations between inmates and their family and friends is permissible for gathering criminal evidence.

The legal debate over tapping jail phones for evidence without a court order goes back to the 1970s case of newspaper heiress Patricia Hearst, in which authorities recorded a conversation she had with a jail visitor and used it against her during her trial for bank robbery.

The state high court, then presided over by liberal Chief Justice Rose Bird, ruled in 1982 that the taping of inmates’ calls and visits with family and friends was illegal if done for prosecutorial purposes. Calls could be monitored only for penal security--to prevent escapes, for example, the court ruled.

The court, now dominated by moderate to conservative Republicans, will decide in the next several weeks whether to overrule the precedent, and if not, whether prosecutors should be sanctioned for violating it.

A state Court of Appeal that considered the Loyd case in 2000 castigated Rogers, the Alameda County assistant district attorney. But Rogers, who the court said committed misconduct, insists the practice is widespread in California jails.

“I wasn’t a cowboy going off and doing something that was completely unusual or out of line,” Rogers said. “It was an accepted practice by the courts, the judges and other prosecutors in my office.”

Ventura County Chief Deputy Public Defender Michael McMahon agrees that county prosecutors eavesdrop on inmates’ telephone calls on occasion, but says the high court should stop the practice.

“The system could profit from a little bit of ethical behavior on the part of prosecutors,” said McMahon, who represents the state Public Defender Assn. in the Loyd litigation.

The Bay Area murder case has reached the state’s highest court at a time of increasing debate over government efforts to listen in on inmates’ conversations. The federal government recently granted law enforcement officers limited authority to listen to inmates’ conversations with their lawyers in cases of suspected terrorism.

Although California will continue to bar officers from eavesdropping on lawyer-client conversations, prosecutors say inmates deserve no such privacy when they are talking to friends and family.

“Do you think there is anybody around here who would like to see the people of Al Qaeda have the right to make private phone calls to their associates on the outside?” asked Mark Hutchins, an Oakland prosecutor who represents the California District Attorneys Assn. in the state Supreme Court case. “I think most people would say no. Lots of prisoners in California are just as dangerous.”

Rogers said he ordered the taping of Loyd’s calls because he needed evidence to charge her with the slaying of her mother, Myrtle Loyd. The 1991 death of the Oakland woman, who was found in her bathtub, had initially been classified an accident.

Christine Loyd, 57, worked for years as a manager of a medical insurance company. Divorced with no children, Loyd lived in an upper-middle-class home her parents had helped her buy in Contra Costa County, east of San Francisco. She had no criminal record or history of psychiatric problems, Rogers said.

At the time Loyd made the incriminating phone call, she already was in an Alameda County jail on charges that she killed Virginia Baily, 59, a Berkeley vitamin saleswoman whose finances Loyd had offered to manage and whose money prosecutors said she stole.

Baily was dead a year and a half before there was enough evidence to charge Loyd. Baily’s body had been badly burned in a 1994 fire at her downtown Berkeley home, but an autopsy revealed the presence of maggots, indicating she had died before the fire. Loyd had purchased two 40-ounce cans of lighter fluid and a hose days earlier.

Prosecutors Learn of Mother’s Death

While preparing to prosecute the Baily slaying, Rogers learned that Loyd’s mother had died in what was classified as an accident three years before Baily’s death. Myrtle, 76, was found dead in her bathtub with six lacerations on her head.

“I thought this was odd,” Rogers recalled. “So I checked [Loyd’s] financial status. Did she have money problems?”

Rogers said Loyd had not made payments on her house during the months before her mother’s death. He said he saw a red flag when he learned it was Loyd who had discovered the body.

Loyd told police she found her mother when bringing groceries to her apartment near Lake Merritt. Loyd said she tried but failed to lift the body out of the tub and drained the water.

The autopsy found that the lacerations on Myrtle Loyd’s head were caused by a long, heavy instrument. One of Myrtle Loyd’s fingers had been dislocated, and there were bruises on her hand. These injuries were consistent with defensive wounds, the coroner’s office determined.

The office alerted homicide detectives, but the case was eventually closed. The death was classified as an accident due to blunt trauma.

Rogers says he believed that Loyd, who received her mother’s $100,000 annuity, had killed out of greed. But he had only circumstantial evidence. The mother and daughter, by all accounts, had been on good terms.

“I’ve heard people say that they spoiled their children, and the children ended up hating them,” Rogers said. “I think that is what happened. I think the daughter was very spoiled and desperate not to lose her house and had no source of income.”

Loyd’s attorney did not return calls seeking comment.

Rogers obtained the evidence he needed when Loyd telephoned her brother from jail. Her brother, who prosecutors said was not involved in the murder, believed in his sister’s innocence, Rogers said.

Taped Phone Call Helped Get Conviction

Rogers played part of the tape at Loyd’s trial in the two slayings, and it appeared to imply that Loyd was trying to pin her mother’s killing on her mother’s hairdresser.

“The tapes permitted the prosecutor to play conversations between defendant and her brother in which they seemed to be concocting patently false scenarios to explain away the defendant’s opportunity to commit the crime,” wrote Justice Marcel B. Poche of the 1st District Court of Appeal.

“The tapes also permitted the prosecutor to suggest that Myrtle Loyd’s death was initially treated as an accident in large measure because the defendant was a convincing liar who manipulated a lazy police officer into accepting her false tale of accidental death,” continued Poche, who dissented in the case.

Loyd was convicted of both killings and sentenced to 55 years to life in prison. The Court of Appeal upheld the convictions 2 to 1, but all three justices on the panel agreed that Rogers had committed misconduct by tapping Loyd’s telephone calls in jail.

In an opinion written by Justice Patricia K. Sepulveda, the majority said Rogers had defied the California Supreme Court’s ruling against such wiretapping but had not violated Loyd’s federal constitutional rights.

“We emphatically condemn this behavior,” Sepulveda wrote. “All attorneys are officers of the court, and the plain holdings of the Supreme Court may not be simply ignored by any attorney, least of all the public prosecutor, who is entrusted with the power and charged with the duty to vindicate the rule of law against those who would disregard it.”

Poche argued in his dissent that the prosecutorial misconduct warranted overturning Loyd’s conviction for killing her mother.

“By using the illicit jailhouse tape of defendant’s conversation with Philip Loyd, the prosecutor effectively bolstered what was a purely circumstantial case with statements from the mouth of defendant herself,” Poche wrote.

In accepting the case, the California Supreme Court said it would consider whether the trial court erred by not dismissing the case or recusing the prosecutor for misconduct. The high court could also find the taping proper or rule it improper but not egregious enough to have affected the verdict.

At issue in People vs. Loyd, S092653, is the 1982 ruling by the state high court that barred prosecutors from using jailhouse tapes of conversations between inmates and family. That ruling was triggered by the trial of Hearst.

Hearst Told Visitor About Crimes

Patricia Tobin, a friend of Hearst, had visited her in jail when she was awaiting trial on charges that she robbed a bank with other members of the Symbionese Liberation Army. The radical group had kidnapped the heiress from her Berkeley apartment in 1974 and she later joined them in committing several crimes.

In a conversation that was taped and played at the trial, Hearst told her friend that she hoped to make a statement from a revolutionary feminist perspective and confided that “my politics are really different” from what they were when the SLA abducted her.

Federal courts upheld the admissibility of the tape, but the California Supreme Court, in a separate lawsuit, later said state prosecutors had no legal right to invade inmates’ privacy in such a way.

Prosecutors say the 1982 ruling is outdated and should be overturned, and Rogers’ taping should be approved.

The appellate court “lambasted Tom Rogers for doing this, when the average person would say what a great job he did,” said Hutchins, senior deputy district attorney of Alameda County. “He saw the similarity between the two crimes and figured out how to get the goods on her on the murder of her mother.”

Rogers could have sought a warrant from a judge to wiretap Loyd, Hutchins said, but “getting a warrant is very cumbersome.”

Rogers said he may not have had enough evidence at the time to persuade a judge to grant a wiretapping warrant under the legal standard of probable cause.

Alan L. Schlosser, who wrote a brief on behalf of Loyd for the American Civil Liberties Union, countered that inmates should have privacy when talking with family and friends on intimate matters. He said the taping violated Loyd’s federal constitutional right to due process.

“Most people are in jail because they can’t make bail,” Schlosser said. “You can’t cavalierly take the position that you don’t have any constitutional rights in jail.”

Ventura Deputy Public Defender McMahon said the California Supreme Court must find a way to punish prosecutors who violate the 1982 precedent.

“If we don’t come up with a remedy for these intentional, illegal activities by government officials, it is almost the equivalent of condoning it,” he said.

Rogers has been a prosecutor for more than 25 years. He has never before been cited for misconduct and wants the state high court to clear his name. “I was just another prosecutor doing what every other prosecutor was doing across the state,” Rogers said.