Thousands of times a month, New Orleans jail inmates pick up a phone to call friends, lovers or lawyers. Almost all those calls are recorded, and prosecutors have learned that a defendant’s own words can be the best evidence against them.
Now, a new report from the watchdog group Court Watch NOLA takes aim at the Orleans Parish Sheriff’s Office for recording some calls between inmates and a group with a special need for privacy: their lawyers.
The report, issued Tuesday, says the practice threatens to undermine the ancient principle of attorney-client privilege while creating another barrier for lawyers who already must endure long waits to consult with their jailed clients in person.
Inmates at the city's lockup can only place calls, not receive them. They place the calls from banks of landline phones, but they can have conversations with recipients who are using landlines or cellphones.
The Sheriff’s Office, which contracts with a company called Securus to make the recordings, says it has taken steps to allow lawyers to communicate with their clients without fear of eavesdropping.
Attorneys who sign a sworn affidavit can conduct unrecorded landline phone calls with their clients, said Blake Arcuri, the Sheriff’s Office general counsel.
In the affidavit, attorneys promise not to allow anyone else on the call or to speak with anyone other than their own client. They also acknowledge that the Sheriff's Office can seek search warrants to monitor the calls if the agency believes laws are being broken.
Arcuri said the procedure, which began in September, now protects more than 3,200 calls to attorneys a month. However, the Sheriff's Office places restrictions on calls to cellphones due to concerns about their "mobility and transferability," he said.
Arcuri said the Sheriff’s Office worries that cellphone calls might be vulnerable to manipulation — like a three-way call among an inmate, an attorney and a witness. He said the jail’s telephone vendor does not offer the technology to detect such calls on cellphones.
But Court Watch NOLA said there is no technology to detect three-way conversations on the unrecorded landline calls, either.
The group said that in its survey of 47 jails across the country, 83 percent of them allow unfettered cellphone calls between lawyers and clients.
“Often private defense attorneys do not have landlines and thus must use cellphones for their attorney-client conversations. Where the attorney-client privilege is subverted, so too is the truth-seeking function of the legal system,” the group said in its report.
Arcuri maintains that three-way calls on landlines can be detected.
There are separate questions about what happens after recordings are made and handed over to prosecutors.
Court Watch NOLA's executive director, Simone Levine, said it would be legal for prosecutors to use jail calls like one where a defendant harasses a girlfriend or wife to not show up in court.
"But they have to separate those phone calls from the attorney-client privilege phone calls that they are not allowed to use in court, because that privilege has existed for over 350 years," Levine said.
The Orleans Parish District Attorney’s Office, for its part, says there is nothing improper about using recorded jailhouse calls between lawyers and clients in prosecutions.
The DA's Office said its use of jail calls between attorneys and clients is “exceedingly rare.” But in at least one case, a recorded conversation proved critical in securing a conviction, according to a former Orleans public defender.
Thomas Frampton, who is now a fellow at Harvard University’s law school, told The New York Times that a client of his mentioned to him that he had just gone through detox before his arrest.
Prosecutors used the conversation to secure the man’s conviction on a possession of drug paraphernalia charge, over Frampton’s objections to a judge, who allowed the call into the record.
“It completely changed the way I dealt with clients,” Frampton said in an email. “Afterward, I effectively stopped taking clients' calls. This was a huge problem. Clients wondered why I never wanted to talk to them, and it became much harder to build trust with them, which is a critical part of the job. But the risk of some relatively innocuous comment being used against my client was just too great.”
The DA's Office did not dispute Frampton’s characterization of the case. But citing court precedent, the office said there is nothing illegal or improper about using recordings of jail calls with attorneys as evidence.
Spokesman Ken Daley called the issue a “contrived controversy,” and he pointed the blame in the drug paraphernalia case back at Frampton.
“These calls are not privileged, and anybody with an understanding of privilege, including the author of the Court Watch NOLA report, should understand that,” Daley said.
Daley said it is office policy not to listen in on privileged conversations between lawyers and clients. But calls to cellphones from the jail — which are prefaced with a warning that they will be recorded — do not fall under that umbrella, he said.
Privilege vanishes the moment a third party, like the jail’s telephone contractor, enters the picture, Daley said.
“I think it’s incumbent upon the defense attorney, at the start of the conversation, to stress to his client that this call is being monitored by law enforcement,” he said.
Meanwhile, Court Watch NOLA has found common ground with the DA’s Office on another issue. The district attorney and the New Orleans Police Department have agreed to start tracking how often victims and witnesses face intimidation.
The group says that there were reports of intimidation in 16 court sessions last year, amounting to 5 percent of the sessions observed by its volunteers.
In 60 percent of those cases, there were reports that a victim or witness was harassed by a defendant. Another 15 percent involved intimidation from defendants’ friends or family.
The group believes that it has documented only a small fraction of the cases where witness intimidation occurs. Simone Levine, the group's executive director, praised the DA and the NOPD for pledging to document the problem.
“The NOPD has agreed with the District Attorney's Office to explore how we can share data with each other to ensure to victims and witnesses that they are protected through the judicial process,” police spokesman Gary Scheets said in a statement. “What that data is and how it is presented is still to be determined.”