Recording inmate calls brings questionable evidence to prosecutors

Michelle Bradford's story in Arkansas Democrat-Gazette brings up powerful questions about inmate rights.
Our justice system seems to be skirted by officials in many ways.

Inmate phone calls not private
BY MICHELLE BRADFORD
Posted on Sunday, September 28, 2008
URL: http://www.nwanews.com/adg/News/238596
FAYETTEVILLE — Interrogation room confessions aren’t the only way a crime suspect’s words can come back to haunt him at trial. With jails across the country using automated recording systems to monitor inmate telephone calls, a suspect’s idle chit-chat can become incriminating evidence. In Washington County, defendants charged in connection with the April 2007 deaths of Kendall Rachell Rice and Kevin Barkley Jones incriminated themselves during telephone calls from the jail to relatives. Despite objections from defense attorneys, a judge ruled the calls don’t violate a defendant’s right against selfincrimination.
Deputy prosecuting attorney David Harris has spent hours listening to recorded inmate calls looking for evidence. In one case, an inmate who was in jail for five months made 700 calls, each of which lasted up to 15 minutes.
“The process [of listening to calls ] took forever, and we didn’t find a thing,” Harris said. “It’s like fishing in an ocean. It’s so labor-intensive we don’t have the time or resources to do it in every case.”
The Washington County sheriff’s office uses a digital recording system that tracks and stores calls that inmates make from pay phones at the jail.
Inmate are assigned a PIN code that tracks calls, which police and prosecutors can access via a secure Web site, said Cpl. Jak Kimball, information technology manager at the sheriff’s office.
The system has other features, like blocking certain numbers and detecting threeway calls, which aren’t allowed, Kimball said.
In a 24-hour period last week, the jail’s 530-some inmates made roughly 10, 000 collect calls, Kimball said. “The numbers are incredible,” he said. “You get inmates who are extremely bored, and that’s what they do: call people.”
CONFRONTED WITH CALLS
Prosecutors also played telephone calls at trial from capital-murder defendant Gregory Christopher Decay telling his mother and brother how he shot Rice and Jones at their Fayetteville apartment last year. Decay, 22, is awaiting execution after a jury convicted him in April and handed down the first death sentence in Washington County in more than 20 years.
Decay’s co-defendant Jesse Lee Westeen, 21, was sentenced last week to 50 years in prison for being an accomplice to first-degree murder.
Prosecutors had telephone calls Westeen made to relatives, admitting he drove Decay to the couple’s apartment knowing Decay said he was going to shoot and kill them.
Tim Buckley, an attorney for Westeen, argued the jail’s process of recording the calls is a “silent form of interrogation.” He argued to exclude the calls as evidence on the basis Westeen had the right not to self-incriminate.
Inmates are told by a judge at an initial appearance that they’re allowed to call friends and family, which gives the impression they can speak freely without legal ramifications, Buckley said.
The recorded AT&T message an inmate hears at the beginning of the call that says it “may” be monitored or recorded, isn’t good enough, Buckley said.
“It sounds like a customer service or a quality assurance message,” he said. “We argued it ought to be a stronger warning.”
Circuit Judge William Storey ruled against Buckley’s argument, finding the recording process isn’t an active interrogation; therefore, it doesn’t require a Miranda rights warning.
John Wesley Hall Jr., a Little Rock defense lawyer who is president of the National Association of Criminal Defense Lawyers, said Buckley’s argument is one that has consistently failed.
“There’s been dozens of cases, and all the rulings are that the recorded message is adequate warning,” Hall said.
Jail calls also yielded evidence in the 2006 trial of Jerry Perez who was convicted of robbing a Fayetteville restaurant with a BB gun.
Jurors heard a call Perez made from the jail, saying he should have “killed the f ****** witnesses” in the case.
The jury handed down the maximum sentence of 50 years in prison for robbery and theft.
The Pulaski County jail doesn’t track calls by inmate PIN code anymore.
Jail Maj. Shawn Smith said there were too many problems with inmates sharing and stealing PIN codes.
Police and prosecutors who want to search for evidence in calls have to check large blocks of data identified by area code or telephone number, Smith said.
“It’s a little like finding a needle in a haystack,” Smith said. “The main reason we have the ability to monitor calls is to keep the jail safe and secure. It’s not to benefit law enforcement investigations.”
BAD CONNECTION
The Washington County system has a potential flaw: It doesn’t distinguish calls inmates make to family and friends from calls they may make to their attorneys. Having prosecutors or police hear a defendant’s call to his attorney could violate attorney-client privilege, especially if trial strategy is discussed. Courts have upheld importance of the attorney-client privilege, and violating it can be a serious breach. Kimball and prosecutors said no one has alleged an attorney-client conversation was recorded improperly at the Washington County jail.
Most attorneys meet in person with their clients in one of the jail’s visitation rooms, he said.
“The public defenders and all the defense attorneys know the calls are recorded,” Kimball said. “They don’t talk about their clients’ cases over the phone. They come to the jail, where we have private areas for that.”
Capt. Mike Conger of the Sebastian County sheriff’s office said it’s pretty much the same arrangement in that jail in Fort Smith.
“Ninety percent of the attorneys come over here in person,” Conger said. “They usually advise their client up front by letter to set up a time they can discuss trial strategy face-to-face.”
For attorneys who have offices near the jail, the arrangement’s not bad, but in big cities where attorneys have long drives, it can be a problem.
In California’s San Diego County, defense attorneys were outraged this summer when they learned telephone calls they had with their clients were recorded improperly at the jail, The Associated Press reported last month.
There have been similar reports of attorney-client breaches in Florida, Michigan and Dallas, the report states.
In California and other states, it’s illegal to record attorney-client telephone calls.
In Arkansas, it’s legal to record any call as long as one party knows it’s happening.
Harris, the prosecutor, said he hasn’t encountered an inmate-attorney conversation while reviewing jail calls.
“If I did, I’d stop listening immediately,” he said.
Hall said, ideally, jail staff should screen the content of calls before they are turned over to prosecutors.
“You have to trust the prosecutor, but it could be tempting, like, ‘Boy, I’d sure like to hear that one, ’” he said.
Some jail systems don’t record attorneys’ telephone calls at all.
The Benton County sheriff’s office’s system allows the jail to identify attorney telephone numbers to be excluded from recording.
“We have no way to listen to those calls,” said jail commander Capt. Hunter Petray.
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