Multiple parties bear some portion of blame for the unacceptable recording of privileged conversations between defense lawyers and their clients in jails and prisons in Los Angeles and Orange counties and elsewhere around the nation. Start with Global Tel Link Corp., one of a small handful of companies that contract with law enforcement agencies to provide inmate telephone service (often at exorbitant rates). GTL records calls and makes them available to police and prosecutors, who scour them for evidence to use against the inmates or others. The company is supposed to refrain from recording calls between inmates and their lawyers, but in Orange County it recorded more than 1,000 of those privileged calls anyway. Company officials have variously blamed a software upgrade and “human error.”
In testimony last month, they acknowledged similar problems in two counties in Florida where they have contracts.
The problem that came to light recently in L.A. has nothing to do with telephones. The Los Angeles Police Department has conducted 19 recording operations in the criminal courthouse in the last five years, including at least one direct, face-to-face consultation between a lawyer and client, according to a report to the Board of Supervisors by interim Public Defender Nicole Davis Tinkham. Other recording operations are requested by many different law enforcement agencies.
Efforts to capture conversations between lawyers and their clients demonstrate a stunning lack of respect for the Constitution and the sanctity of attorney-client confidentiality, and the blame lies not just with contractors but with police departments and, especially, the L.A. County Sheriff’s Department, which has jurisdiction over lockup areas and other courthouse areas in which lawyers meet with their clients. Defendants won’t fully confide in their lawyers if they believe police or prosecutors are listening in. Their inability to speak freely undermines their 6th Amendment right to counsel.
Many deputy public defenders roundly criticized the appointment of Tinkham because she has no background as a criminal defense lawyer. It’s noteworthy, then, that her prompt and vigorous response to the eavesdropping scandal has resulted in a new Sheriff’s Department policy requiring command-level approval of recording operations, and an agreement not to record conversations in attorney conference rooms without a court order.
As Tinkham prepares to turn the office over to new Public Defender Ricardo Garcia next month, it’s also important to remember that the rights of defendants can best be protected by an advocate who is prepared to go toe-to-toe with officials who enjoy more political clout, like the independently elected district attorney and sheriff. That’s a contest that may take place just as often in the court of public opinion as in the criminal courtroom.