Unequal protection

A new court decision allows prosecutors to tape-record the conversations that incarcerated defendants have with family and friends while awaiting trial

Sacramento County Public Defender Tommy Clinkenbeard believes taping defendents’ coversations handicaps defense teams.

Sacramento County Public Defender Tommy Clinkenbeard believes taping defendents’ coversations handicaps defense teams.

Photo By Larry Dalton

About three months from now, city of Sacramento police officer Darryl Rosen is scheduled to stand trial in Sacramento County Superior Court. Currently on administrative leave from the department, Rosen faces a total of 14 felony and three misdemeanor charges, stemming from allegations that, while on duty, he sexually attacked five women ranging in age from 18 to 24 as well as a 16-year-old girl. Under the law, Rosen is innocent until proven guilty, so he’s currently a free man, having arranged to post bail of $500,000. This means he has unrestricted access to his attorney, witnesses, family and friends.

But hundreds of other individuals accused of greater and lesser crimes aren’t as fortunate; they don’t have the financial resources Rosen has. The majority of criminal defendants accused of felony offenses—who also are innocent until proven guilty—are held in the Sacramento County jail while awaiting their day in court. For these defendants, any contact with their attorney, witnesses, friends and family is severely restricted. And a relatively new California Supreme Court ruling has increased the disparity between in- and out-of-custody defendants, by giving prosecutors a potent new tool for virtually exclusive use against low-income defendants who cannot afford to post bail.

The court decision, known as People vs. Loyd, essentially allows prosecutors to tape-record the conversations that incarcerated defendants awaiting trial have with witnesses, friends and family. According to criminal-defense attorneys familiar with the issue, the recordings can then be used in a variety of ways by the prosecution, to the detriment of the defense. Defense attorneys charge that the tactic is unconstitutional and fundamentally unfair and that it further exacerbates the established institutionalized socioeconomic bias of the criminal-justice system. Relying on the new ruling, a Sacramento County Superior Court judge recently sanctioned the use of jail recordings in a local prosecution.

For security purposes, most jail visit and phone conversations are already monitored, but in the Loyd case, an Alameda County prosecutor had jail staff tape-record the conversations of the defendant, Christine Loyd. Jail staff recorded 85 telephone calls and five visits on 32 cassette tapes. The prosecutor then used excerpts from the tapes during Loyd’s jury trial to discredit defense witnesses, among other things. The defendant was convicted and then appealed on several grounds, including her assertion that the use of the recordings constituted prosecutor misconduct. In its review of the case, the appellate court essentially agreed that the prosecutor had committed misconduct with respect to the taped conversations. “We emphatically condemn this behavior, which unquestionably constituted misconduct not only as a deliberate invasion of defendants’ rights, but as a threat to such structural guarantees as the separation of powers and the supremacy of the judiciary in determining what the law is,” wrote the court. But two of the three appellate-court judges who heard the case determined that the prosecutor misconduct was not serious enough to reverse the conviction or grant the defendant a new trial.

The third judge, Court of Appeal Associate Justice Marcel Poche, disagreed with his colleagues and wrote that he believed the taping violated state and federal law and denied the defendant a fair trial. “The prejudice to the defense from the illicit jailhouse tapes was considerable,” said Poche in arguing that the defendant deserved a new trial. “It is an affront not only to the rights of this defendant but to the long tradition of integrity of the office of the Alameda County District Attorney for a prosecutor to willfully ignore the dictates of the law on the basis that he or she can ignore it with impunity to gain a conviction,” he concluded. The case was appealed to the California Supreme Court, where the justices unanimously concluded that the conduct of the prosecutor was legal under state law.

Prosecution officials are surprised that the issue is even controversial. Larry Brown, executive director of the California District Attorney’s Association, said that the practice of using jail recordings for prosecution purposes is and has been common throughout the state. “This has been a much longer-standing practice than only since the Loyd decision,” he said. “Had the [Loyd] case gone differently … it may have been significant, but it just maintained business as usual.”

Sacramento County District Attorney’s Office Spokesperson Lana Wyant also inferred that local prosecutors regularly use jailhouse recordings. “The law has provided us with the use of these tapes, and we’re going to use it if we can use it,” she said. Wyant dismissed the socioeconomic aspect as irrelevant. “If it serves the interests of justice, we’re going to use it, irregardless of the premise. We’re not looking at the socioeconomic status of the defendant; we’re gonna use it on every defendant we can use it on,” she said.

But the only defendants prosecutors are able to use it on, without obtaining a court order, are those held in the county jail. Veteran Sacramento County Public Defender Tommy Clinkenbeard said he has never had a client who was out on bail while awaiting trial be surreptitiously recorded by prosecutors.

When pressed to respond to the possible class-based unfairness of the practice, Brown offered a candid admission. “If there truly is problem, and if you’re going to change it, it can be fixed one of two ways. Either you shut down this practice all together, or you go ahead and allow for full tapping on all [defendants’] phones. Even [the California District Attorney’s Association] wouldn’t propose that,” he said, in reference to phone tapping for defendants both in and out of custody.

Clinkenbeard contends that the new policy significantly handicaps the defense in a number of ways. By using the recordings, prosecutors are able to obtain inside information about a defendant’s defense strategy, anticipated expert-witness testimony and other crucial facts not available in the prosecution of an out-of-custody defendant. Although the direct communications between an incarcerated defendant and his attorney remain confidential under the law, Rosen’s attorney, Christopher Miller, said that prosecutors are able to obtain even this protected information by using jail recordings. “The problem that you run into is that an attorney will say X, Y and Z to a client, and then the client will pass it on to a family member in a non-confidential communication, and voilà. In legal terms, it’s the client who holds the [attorney-client] privilege, and the client, by doing that, has waived his or her attorney-client privilege and disclosed that stuff. But [incarcerated defendants] need to communicate with their family members and people who could potentially be witnesses,” Miller said.

Other legal commentators claim the problem is judges, who are responsible for keeping a leash on over-zealous prosecutors. They point out that Canon 3B(6) of the California Code of Judicial Ethics—the state code of conduct for judges—requires that judges make sure that all lawyers, including prosecutors, perform their duties without “bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status.” State judges also are required to obey past decisions of the United States Supreme Court, which long has ordered that the government may not discriminate against indigent criminal defendants. In 1956, the court ruled that denying a criminal defendant the right to an appeal because he or she could not afford to pay for court transcripts was unconstitutional. That clear admonition more than 45 years ago may be relevant to the current controversy.

“Such a denial is a misfit in a country dedicated to affording equal justice to all and special privileges to none in the administration of criminal law. There can be no equal justice where the kind of trial a man gets depends on the amount of money he has,” read the 1956 ruling.

Meanwhile, Miller said he’s relieved that Rosen was able to post bail and is not subject to the restrictions that go along with being incarcerated in the county jail. “It’s common sense that if a person is in jail, it’s going to make it more difficult to have attorney-client communications than it would if a person is out of jail,” Miller said.