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Report: Maine jails recorded confidential attorney-client phone calls

Androscoggin County Jail in Auburn, Maine.
Fred J. Field
Androscoggin County Jail in Auburn, Maine.

The communication between a defendant and his or her attorney is supposed to be confidential, even if the defendant is currently housed in a jail pending trial. But the Maine Monitor has found that's not always the case when defendants use jail telephones to talk with their attorney.

Morning Edition Host Irwin Gratz spoke with Samantha Hogan, a reporter with the Maine Monitor, about the findings.

This interview has been edited for clarity.

Gratz: What tipped you off that there was a problem with these attorney-client phone calls?

Hogan: It was brought up that a defense attorney had a phone call recorded between him and his client at the Somerset County Jail. And that had actually been released to the attorney general's office and been heard by an assistant attorney general. And so he was curious about whether or not this had happened, and I was too. I wanted to know how widespread this issue was. So what I started to do was put out public records requests to all 15 jails in the state to try and find out how big of an issue this was.

How long have you found out that this has been going on? And how widespread is it?

We have found so far that there are nearly 1,000 attorney-client phone calls that were recorded at just four jails in a span of one year. We unfortunately have not been able to acquire records from a lot of the jails. A few have told us that they did searches and didn't find any, but the majority are saying that this isn't government business, and that it would be an infringement of the privacy of the inmates to say whether or not the jail had recorded their calls. But they have public contracts with very large national telecommunications companies to do this. And attorney-client privilege is pretty sacred. Anyone who's a legal expert will tell you it's a cornerstone of the American justice system, to be able to privately and confidentially have a conversation with your attorney, so that you can make a trial strategy, so that you can make decisions about who should be witnesses or evidence that should be collected. And in our story that we published on Wednesday, we looked at three open murder cases where copies of attorney-client phone calls were handed over to the Maine State Police and parts of those calls were listened to. And it's a real struggle for these defense attorneys to find out how they're going to address it, not address it, you know, whether or not this can be used to potentially dismiss charges. I mean, it's become a real mess.

OK, so you mentioned a private company, which provides the phone service to the jails. Does that company have any way of making sure that this doesn't happen?

So in Maine, we find that the jails contract with two major telecommunications companies, Securus Technologies and GTL. A lot of them use Securus Technologies. And in Securus' system, there is a way to make an attorney's phone calls private, essentially that they cannot be recorded. A lot of attorneys do have their phone numbers registered as private, but it's a very complicated, not consistent process between the jails. And sometimes that information isn't transferred between jails. So there was an effort in May 2020, when this first came out, to register 439 defense attorney phone numbers, and that made a huge impact. It definitely reduced the number of recordings that were being made. But I think that when I speak to defense attorneys, they're still not positive how to get on that list always. And sometimes there's some miscommunication by the jails as well.

Have any other Maine authorities tried to do something to correct this?

So there hasn't been a lot of action to correct it. A couple of defense attorneys did file a federal class action lawsuit in Aug. 2020, trying to say that Securus Technologies had allegedly wiretapped their and their clients' phone calls through the jail's telephones. Unfortunately, that case was dismissed without a decision in Nov. 2021. It technically could come back, but it's pretty much on life support. Because remember, you can call anyone from jail, you could call family, you could call friends, you could also call people that you're conspiring to commit crimes with, or you could call someone that was a victim of your crime. And so the sheriffs will say, and jail administrators will say, that it's really important that they be able to monitor some of these nonattorney calls in order to stop contraband from coming into the prisons and to stop witnesses and victims from being harassed.

This matter is also now a subject of a lawsuit by the Monitor. What's that about?

We reached out to every county trying to collect records about what calls to attorneys the jails may have recorded. And York County consistently denied our Freedom of Access Act requests. So with the help of the Media Freedom and Information Access Clinic at Yale Law School, along with Sig Schutz at Preti Flaherty, we filed a lawsuit last August challenging the denial of our public records requests to find out whether or not the York County Jail did record attorney-client phone calls and whether anyone had access to those phone calls.

Are defense attorneys perhaps changing tactics or perhaps suggesting that their clients not talk to them on the phone?

There's a real problem with defense attorneys no longer trusting the jail's phone systems and no longer believing that those calls are confidential. And so they are often delaying important conversations with their clients until they're either seated with each other inside the jail or sometimes at a courthouse. And that is delaying crucial communications. That might be a week's difference in getting to a witness of a potential crime. That can make the difference between making bail and keeping your job or staying in jail until you have a trial or until you take a plea deal.