The Government Is Barred From Taping Attorneys' Talks With Inmates. So Why Is It Happening In SoCal?
By Annie Gilbertson and Mary Knauf
It wasn't unusual for Spencer Vodnoy to get calls from Los Angeles County jails. As a defense attorney, he regularly strategized with inmate clients on the phone. But in 2014, Vodnoy learned someone else had been listening to his conversation with a client in Lancaster: a special agent working with L.A. County prosecutors.
"Outrageous!" said Vodnoy. "If you can't talk on the phone to your clients, that's a big problem."
The prosecutor was Deputy District Attorney Craig Kleffman, who now has at least two cases, including Vodnoy's, in which the recording of inmates and their attorneys have come to light.
Kleffman's most recent attorney-client recording operation -- at a courthouse in downtown L.A. -- resulted in investigations at the public defender's office and inside the county's largest law enforcement agencies: the LAPD, the district attorney's office and the sheriff's department.
It's a felony in California to eavesdrop or record conversations between a person who is in custody and that person's attorney without permission. The revelation prompted alarm about the scope of such operations across the county.
"We are concerned about a pattern of misconduct," said Tiffiny Blacknell, an L.A. County deputy public defender who's been championing the probe into prosecutors' and officers' actions.
"We have not seen anything so far that would indicate anyone was targeted with their attorney-client conversations in this case," District Attorney Spokeswoman Shiara Davila-Morales said in a statement, "but the investigation is ongoing."
"IMMEDIATELY STOP LISTENING"
In the Lancaster case involving Vodnoy, Kleffman had been working with California Department of Corrections and Rehabilitation Special Agent William Yarbrough, according to Kleffman's court declaration. Yarbrough was investigating Andre Scott, a former Lancaster prison guard who prosecutors accused of smuggling contraband such as phones, heroin and marijuana into the prison.
Yarbrough retrieved around 300 hours of audio from 425 jail calls from the L.A. County Sheriff's Department, which operates the jail in which Scott was being held, according to court records. Among the recordings were nine conversations between Scott and his attorney.
The agent listened to three of them, and texted Kleffman about it. By the third text, Kleffman said in his declaration that he realized the agent was hearing attorney-client conversations.
"Within seconds of receiving that text message, I picked up my office phone and dialed SA Yarborough's number," Kleffman wrote. Kleffman declined to comment for this story.
Kleffman told the court he instructed the agent to "immediately stop listening" and "not to reveal the contents of those calls." After conferring with several attorneys, he called Vodnoy the next day.
Vodnoy was furious. He asked the judge to remove Kleffman from the case and to have the case tossed out for prosecutorial misconduct.
The judge asked Kleffman to read him each text. How much had he learned? The answer to the question could backfire on the prosecution. If Vodnoy's motion to dismiss was granted, it could set a guilty man free.
A SURGE OF ALLEGATIONS
Kleffman's past conduct is part of a surge of allegations that have deluged law enforcement in Los Angeles, Orange and Alameda counties this summer. Each one involves recording or accessing private conversations between defendants and their attorneys and has raised questions about whether proper safeguards are in place.
Los Angeles County law enforcement came under scrutiny in July after Kleffman requested the LAPD surreptitiously record conversations among inmates at the Clara Shortridge Foltz Criminal Justice Center in downtown L.A. The operation, which was first reported by the Los Angeles Times, was conducted in an attorney-client conference room. Law enforcement failed to turn off the recording devices when Blacknell, the deputy public defender, came in to discuss the case with her client. Prosecutors say they haven't listened to the tapes.
"It was outrageous government conduct," said Blacknell, who is now gathering information about the scope of courthouse recordings in Los Angeles County.
In court last week, public defenders stated they learned of at least 19 recordings by the LAPD at that single courthouse in the last five years, though it's not yet known if any captured attorney-client conversations.
In a statement, sheriff's department spokesperson Nicole Nishida said its policy is to "not record conversations between attorneys and their client without a court order." While the internal investigation is ongoing, earlier this month sheriff's officials decreed that "all audio recordings of inmates in secured areas designated at attorney rooms, or areas that would otherwise designated to have attorney-client privileges, are restricted," according to Nishida.
"These recordings are deeply problematic," said Beth Colgan, an assistant professor at UCLA School of Law. "If anyone is suggesting to you that that is appropriate behavior, it's definitely not."
Colgan said access to attorney-client conversations can put prosecutors at an unfair advantage.
But it can also thwart their case.
The Orange County Register reported in July that more than 1,000 phone calls between inmates and their attorneys had been improperly recorded, sending Orange County Sheriff's officials and their telephone contractor, GTL Corp., scrambling to explain the breech. Of the 1,000 calls, 58 were accessed by sheriff's staff. It is unclear if information from the calls was shared with prosecutors and the Orange County District Attorney's office is looking into whether cases have been affected.
In a letter to the sheriff, representatives for GTL Corp. said when it learned of the error, the company immediately took corrective action. GTL Corp. could not be reached for comment.
Weeks after that revelation,the San Francisco Chronicle reported the Alameda County Public Defender's office accused that county's sheriff's department of illegally recording at least one conversation between a juvenile suspect and his attorney.
The case against the juvenile has since been thrown out, and other cases may follow suit. According to The Chronicle, the Alameda County District Attorney's Office is reviewing every juvenile case filed this year and is investigating whether to file charges.
WHERE'S THE LINE?
In the Lancaster case, Kleffman blamed Vodnoy and his client, Andre Scott, for agreeing when prompted by the automated phone system for permission to record. According to sheriff's department policy, attorneys may register their phone numbers to prevent the recording of their calls.
Though Kleffman put a stop to the investigator listening to the calls, he later maintained that the conversation was not privileged.
"An attorney-client privilege is easily destroyed with a simple waiver. That's precisely what happened in this case," Kleffman told the court.
Some legal experts questioned that interpretation.
Peter Joy, legal ethicist at Washington University, said pre-call warnings don't necessarily waive a defendant's right.
"First of all, saying you understand that it's being recorded is different than saying you waive your attorney-client privilege," Joy said. "I think the law is not clear on this."
This remains an issue in the case of the Orange County jail recordings. Sheriff Sandra Hutchens stated that although each jail call is prefaced with a warning, attorney-client conversations should not have been recorded.
Vodnoy was emphatic. He told the court the law his client's rights had been "trampled."
In the end, the recordings in the Lancaster case did not set Scott free. Judge Charles Chung allowed Kleffman to remain on the case and refused to dismiss the charges. Scott eventually took a deal, pleading guilty to smuggling contraband.
Vodnoy now runs a cannabis business. He said he grew disillusioned by the criminal courts.
"When I think about it I get so upset," Vodnoy said. "What a disservice to the system - to justice."
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