The latest call on our sympathies is on behalf of defendants who call their attorneys from the New Orleans slammer and blurt out incriminating information notwithstanding a stern warning that the conversation will be monitored and recorded.
It's amazing that people could be so stupid. No, not the inmates — the IQ level behind bars will always tend to be low — but the lawyers. A failure to make their clients dummy up when the sheriff's office is on the line comes close to malpractice.
Court Watch NOLA, which has assumed responsibility for keeping an eye on the sheriff's office, thinks listening in on the calls undermines the attorney/client privilege. It is perfectly legal, but maybe justice would indeed be served if the eavesdropping were cut out.
In the vast majority of other cities it surveyed, Court Watch said all conversations between inmates and attorneys are off limits. They are off limits too right next door in Jefferson Parish.
Orleans Parish District Attorney Leon Cannizzaro's office has no such compunction but points out that other arrangements are in place at the New Orleans jail to protect the attorney/client privilege, either in person or on the phone. But legal advice is not always easy to obtain for defendants who can't make bail while they await trial.
If confidentiality is desired, an attorney must either make arrangements in advance to receive unmonitored calls on a landline or take himself down to the slammer. The sheriff's office likes to point out that attorneys are free to turn up at there any time of the day or night, although at busy periods they may be in for a long wait.
Prosecutors can use any evidence gleaned from regular jailhouse phone conversations at trial. In Orleans Parish, it has proved crucial in convicting many a defendant notwithstanding claims of privilege from attorneys who should have known that prosecutors are entitled to adduce recordings of jailhouse phone conversations between lawyer and client.
For establishing that, we are indebted to none other than T.S. Ellis III, the federal judge in Virginia, best known hereabouts for presiding over the trial of former New Orleans U.S. Rep. “Dollar” Bill Jefferson in 2009.
Three years earlier, Ellis had sentenced Jay Lentz to life in prison for the kidnap and murder of his ex-wife. Lentz was convicted in part because, while in jail, he blabbed in a phone call to his attorney. In ruling that the conversation was not privileged, Ellis noted that, while attorney/clients privilege is a “bedrock principle,” courts have declined to “stretch its application to circumstances beyond its rationale.”
Ellis and Court Watch NOLA could not disagree more on this issue. Court Watch avers in its report that “where the attorney/client privilege is subverted, so too is the truth-seeking function of the legal system.” A veil of secrecy may not be the most obvious aid to the search for truth, however, and Ellis in his ruling cited precedent in support of the proposition that “the attorney/client privilege, like all privileges, impedes the full and free discovery of the truth and is in derogation of the public's right to every man's evidence.”
That does not diminish the “fundamental importance” of preventing “disclosure of such communications when the client invokes the privilege,” according to Ellis. Since nobody denies that the attorney/client privilege is crucial to a just system, the public interest is best served when there is no impediment to invoking it.
In New Orleans, it applies to phone calls only when they are placed from a jailhouse phone to an attorney who has promised in an affidavit not to let anyone else in on the call. Although the only way to establish immediate contact with an attorney well be by cellphone, the privilege doesn't apply when one is used.
Although prosecutors and jailers are within their legal rights in imposing such restrictions, experience elsewhere suggests they could safely keep their noses out of all legal consultations, and thus treat defendants the same whether or not they could afford bail. That is what would happen if fairness were a consideration, but, in an office that spent years sending out bogus subpoenas, it evidently isn't.