A late-breaking article from The Ledger Monday reported on a spat between the Polk County Sheriff’s Office and our local public defender. According to the article, the Sheriff claims that, pursuant to a state Supreme Court decision, the Polk County Jail has the right to record phone calls between inmates and their lawyers. The public defender contends that the Sheriff misconstrues the decision and that the calls should not be recorded. I can assure you from personal knowledge that both Grady Judd and Marion Moormon have competent attorneys who work for them. Whose interpretation is right?

In my opinion, technically, the Sheriff is probably correct as to Florida law.

There are two Florida Supreme Court cases at issue. One is McWatters v. State, Case No. SC07-51 (Fla., 2010). In McWatters, the jail had recorded telephone calls between the inmate and his attorney. The prosecutor had listened to the recordings, and McWatters wanted to have the prosecutor disqualified from the case for that reason.

Here’s what the McWatters opinion had to say about the issue, including some much-needed factual context:

McWatters also argues that the trial court erred in denying his motion to disqualify the State Attorney’s Office (SAO) for the Nineteenth Judicial Circuit. He contends that the SAO should have been disqualified because the SAO listened to phone calls McWatters made to his lawyers while he was an inmate at the Martin County Jail. This Court has stated that “disqualification is proper only if specific prejudice can be demonstrated. Actual prejudice is `something more than the mere appearance of impropriety.’ Disqualification of a state attorney is appropriate `only to prevent the accused from suffering prejudice that he otherwise would not bear.’” Farina v. State, 680 So. 2d 392, 395-96 (Fla. 1996) (citations omitted) (quoting Meggs v. McClure, 538 So. 2d 518, 519-20 (Fla. 1st DCA 1989)). A ruling on a motion to disqualify is reviewed for abuse of discretion. Id. at 395.

At a hearing on McWatters’ motion, evidence was presented that the jail systematically recorded all calls made by inmates. A recording was played before each conversation that advised the inmate: “This call is subject to monitoring and recording.” After listening to the recorded calls to counsel in camera, the trial court denied the motion. The trial court found that McWatters’ statements were limited in a “fashion that strongly indicates his knowledge that he is being monitored or recorded” and that other calls demonstrated that he “clearly knows that he is subject to being recorded.” The trial court concluded that “[t]here was no reasonable expectation of privacy in those calls and there was a voluntary waiver of privilege by Mr. McWatters in the face of that lack of reasonable expectation of privacy.” The trial court added that there was no evidence “that the substance of these calls provided any benefit to the prosecution” or was used to “any detriment to Mr. McWatters.” We agree.

Section 90.502, Florida Statutes (2006), establishes a statutory privilege for communications between a client and his or her lawyer. The attorney-client privilege “attaches only to confidential communications not intended to be disclosed to third persons who are not furthering the rendition of legal services.” Mobley v. State, 409 So. 2d 1031, 1038 (Fla. 1982). “Whether a communication is confidential depends on whether the person invoking the privilege knew or should have known that the privileged conversation was being overheard.” Id. Before every call, McWatters was warned that his calls were subject to monitoring and recording. This Court has held that an inmate has no reasonable expectation of privacy in a telephone communication from jail where the inmate is warned that all calls are monitored or recorded. See Jackson v. State, 18 So. 3d 1016 (Fla. 2009), cert. denied, 78 U.S.L.W. 3417 (U.S. Jan. 19, 2010). There was no reason for McWatters to believe that his phone calls to defense counsel would be excluded from this warning. Thus, McWatters waived his right to confidentiality. Based on the foregoing, we find that the trial court did not abuse its discretion in denying McWatters’ motion to disqualify the SAO.

One thing that you need to know is that legal decisions are usually very specific. Generally speaking, courts will try very hard not to address questions that are not presented to them. So we have to consider that the McWatters case does not address some questions. For example, it does not address the question of whether a phone call like this is admissible as evidence (the state did not try to play the recordings for the jury). It does not address the question of whether the prosecutor behaved ethically. It only addresses the question of whether the prosecutor should be disqualified simply because he listened to the tapes. So we have to be careful applying a decision like this to different circumstances.

Be that as it may, it looks like the Sheriff can record attorney/inmate telephone calls. Sheriff 1, Public Defender, 0.

The second case at issue is the Jackson v. State case quoted in McWatters. That is the case that actually says that there is no reasonable expectation of privacy in phone calls from jail if there is a message saying the calls are being recorded. The Jackson case did not involve acommunication with an attorney. But I don’t think anyone would argue that if you get a recorded message saying “This call is being recorded,” you don’t really have a reasonable expectation that your conversation is private. That’s just common sense.

So the Sheriff appears to be correct as to state law.

But wait! There’s more!

The story is not over. What about the Sixth Amendment of the U.S. Constitution? You know, the one that says that we have a right to counsel? Does the new policy prevent meaningful access to counsel to the point that the Sixth Amendment is violated? Well, there are no U.S. Supreme Court decisions on point that I am aware of, but at least one U.S. Circuit Court of Appeals decision (one level below the Supremes) addresses a similar issue, and there are several district (lower) court opinions on point.  I’ve bolded the good stuff, below, but provided lots of context. Skip the big quotes if you just want the executive summary.

The appellate case is Johnson-El v. Schoemehl, 878 F. 2d 1043 (8th Cir., 1989) and it suggests that restrictions like this might be unconstitutional, albeit from the standpoint of a very different situation:

1. The Allegations

Plaintiffs’ pro se complaint alleged the following deprivation of due process rights: (1) an inadequate opportunity to consult with counsel, (2) no privacy during such consultations, (3) an inadequate law library and notarization service, and (4) the inadequate safeguarding of mail.

The plaintiffs alleged the following underlying facts. First, they were permitted access to a telephone for personal and legal purposes only twice a week. They were allowed only two calls, a twenty-minute phone call during the week and a ten-minute call on weekends. The only opportunity to call their attorneys was during the week; the weekday call, however, alternated each week between daytime and nighttime. Thus, they had one chance every two weeks to call their attorney’s office. “Furthermore, when I attempted to telephone my attorney during the day and his line was busy or my attorney was away from his office, my allotted phone call was considered made and I had to wait another two weeks for another attempt.”

Moreover, when counsel was reached on the phone or visited, the plaintiffs allege that private consultation was impossible.

The phone was brought to the tier and phone calls were made in the open. There was so much noise in the background that I would have to yell in order to be heard. * * * When my attorney came to the jail to discuss my defense, no conference room was made available to us. We would meet in the lobby with guards and other jail staff always within hearing. Even though we would speak in a low voice, the guards were able to overhear our conversation.

Finally, plaintiffs allege that the Jail law library was inadequate. While Jail policy allowed them one hour twice a week in the library to research and write, in fact they were only given one hour a week and went four at a time. Moreover, the Missouri codes describing the crimes they were charged with were outdated. In addition, Tyrone Johnson-El alleges that restricted access to the law library was used as a punishment device to deter grievance filing.

2. Clearly Established Law

These facts, if true, state violations of clearly established rights. Pre-trial detainees have a right to meaningful access to courts and to judicial process. Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977) (state prisoners); Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971). The City must provide its pre-trial detainees either with “adequate law libraries or adequate assistance from persons trained in the law.” Bounds, 430 U.S. at 828, 97 S.Ct. at 1498. In this case, the City may have sufficiently constrained both avenues so as to violate plaintiffs’ due process rights. Kelsey v. State of Minnesota, 622 F.2d956 (8th Cir.1980).

The limited opportunity to consult with counsel in this case is as yet inadequately justified. “[I]nmates must have a reasonable opportunity to seek and receive the assistance of attorneys. * * * The extent to which that right is burdened by a particular regulation or practice must be weighed against the legitimate interests of penal administration * * *.” Procunier v. Martinez, supra note 5, at 419-20, 94 S.Ct. 1814 n. 5. Here, no rationale has been offered for the Jail’s particular phone system nor for counting calls as made where the attorney was not reached. Moreover, the ability of counsel to visit the Jail cannot always compensate for an inmate’s initial inability to ask an attorney to visit. Worse yet, inmates who have not yet retained an attorney are obviously prejudiced if they can only make one call during business hours every two weeks. The phone system, if it is operated in this way, is patently inadequate. Compare Moore v. Janing, 427 F.Supp. 567, 576 (D.Neb.1976) (unlimited phone calls to retain an attorney and unlimited phone time with attorney of record); Jones v. Wittenberg, 330 F.Supp. 707, 719 (N.D.Ohio 1971) (phone rights of detainees to locate and to consult with counsel); see alsoLathan v. Oswald, 359 F.Supp. 85 (S.D.N.Y.1973); Collins v. Schoonfield, 344 F.Supp. 257 (D.Md.1972). Defendant Booker grants that the phones are available on this restricted basis, but avers that the Jail is “in the process” of changing the phone system. This may pertain to the injunctive relief necessary but does not change our inquiry; further, we do not presume this is a concession on the merits.

Detainees’ right to counsel and due process can also be compromised by a lack of privacy in consultations with counsel. Forcing prisoners to conduct their meetings with their attorneys in the open or to yell over the phone obviously compromises the consultation. Detainees might be hesitant to disclose names and information relevant to the attorney’s investigation and necessary to the advice sought. Often pleas are changed in the months before trial based on counsel’s assessment of the strength of each side’s case. The right to an attorney would mean little if it did not effectively attach until the hushed whispers at the defense table the morning of trial, after counsel has selected her strategy and witnesses. Thus, as we have already stated, “[i]t is clear `that an accused does not enjoy the effective aid of counsel if he is denied the right of private consultation with him.’” Mastrian v. McManus, 554 F.2d 813, 820-21 (8th Cir.),cert. den., 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977) (extensive citations omitted). In this case, the plaintiffs allege that they were only allowed to meet with their attorneys in public areas of the Jail where their conversations could be overheard by guards and other prisoners. As the district court for Nebraska concluded from similar facts, “[s]uch conditions impede the detainees’ ability to prepare for trial, jeopardize the confidentiality of their attorney-client communications and invade their right to privacy.” Moore, 427 F.Supp. at 576.See Ahrens, 434 F.Supp. at 898; Berch v. Stahl, 373 F.Supp. 412 (W.D.N.C.1974); Souza v. Travisono, 368 F.Supp. 959 (D.C.R.I.1973), aff’d, 498 F.2d 1120 (1st Cir.1974); Jones, 330 F.Supp. at 719 (remedy ordered). (Ed – some citations omitted for brevity)

See also McClendon v. City of Albuquerque, 272 F. Supp. 2d 1250 – (D.N.M. 2003):

With regard to the constitutional right of access to the courts, “[i]t is now established beyond doubt that prisoners have a constitutional right of access to the courts.” Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Access of inmates to the courts must be “adequate, effective, and meaningful.” Id. at 822, 97 S.Ct. 1491. “Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid.” Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974).

Plaintiffs and Plaintiff Intervenors allege that Defendants have imposed restrictions on counsel’s access to the MDC facility, MDC records and MDC inmates, including a complete ban on visitation with clients and a five-minute limit on telephone calls with counsel. Such restrictions would “unjustifiably obstruct the availability of professional representation,” thereby violating the class members’ and the sub-class members’ constitutional right of access to the courts. Id.

But there are also cases that come out the other way. One case squarely on point, albeit a district court case as opposed to a more important appeal, is US v. Lentz, 419 F. Supp. 2d 820 (E.D. Va, 2005):

These principles, applied here, make clear that the NNRJ’s practice of recording and monitoring all inmate telephone calls does not violate Lentz’s Sixth Amendment rights. A different result would doubtless obtain were NNRJ to block all avenues of effective contact with counsel; such conduct by prison officials would contravene the Sixth Amendment. But the fact is that this is not such a case; NNRJ does not prevent inmates from conferring confidentially with counsel. Specifically, Lentz and other NNRJ inmates have at least two effective avenues of communicating confidentially with counsel-mail and inperson conferences. First, inmates at NNRJ may have unlimited outgoing and incoming correspondence with their attorneys. This correspondence may be screened for contraband, but is not read or otherwise monitored. Similarly, NNRJ inmates may confer confidentially with their attorneys at NNRJ. These conferences are neither recorded nor monitored. Of course, counsel must travel 90 miles from Alexandria to NNRJ to meet and confer with Lentz, but they are compensated at the statutory hourly rate for their travel time and are reimbursed for their travel expenses as well.

See also Pino v. Dalsheim, 558 F. Supp. 673 (S.D. N.Y., 1983), which is very similar.

So does the this policy violate the Sixth Amendment? You’d need a crystal ball to know for sure. The only cases (that I know of) on point say the policy is fine, but the more important case, the 8th Circuit appeal, suggests that it is not that simple.

For me, the answer is very simple and has little to do with the law. Whether the Sheriff provides telephone access, or the public defender has to drive down to Frostproof, you and I are going to have to pay for it. Which way is cheaper for the taxpayers? Probably the phone. If I were wrongly accused of a crime, would I want to be able to call my lawyer from jail? You bet. I bet Sheriff Judd and Jerry Hill would, too.

What do you think?