New Orleans jail recording phone calls, The phone call used to convict Gerard Howard lasted seven minutes.
Howard made the collect call to his attorney from Orleans Parish jail shortly after his March 2015 arrest on possession of heroin and of drug paraphernalia, court records show. It began with a standard disclaimer for jail calls, saying it was subject to recording and monitoring. Then, once connected, public defender Thomas Frampton asked why Howard had been transferred to a different jail building.
Prosecutors later dropped the heroin charge, leaving Frampton confident he could prove his client’s innocence with lab results showing the two syringes found on Howard were clean. But days before the trial, District Attorney Leon Cannizzaro’s office told Frampton prosecutors would use the recording of that jail call, and specifically Howard’s utterance of the word “detox,” as evidence of the needles being drug paraphernalia.
“I was shocked they actually used it in court,” recalled Frampton, now a lecturer at Harvard Law School.
Frampton’s objections did not sway Judge Darryl Derbigny from considering the jail recording when finding Howard, then 39, guilty and sentencing him to credit for time served. But for Frampton, the case meant the end to phone calls as a way to speak with his clients in jail.
“The risk was too high,” he said.
A new report by the watchdog group Court Watch NOLA raises alarms about the recording and sharing of phone calls between attorneys and their clients inside Orleans Parish jail. It’s a practice the nonprofit group says puts the constitutional rights of inmates in jeopardy by giving authorities a window into discussions that should be shielded by attorney-client privilege, according to the report released Tuesday (May 22).
“The attorney-client privilege was created so an attorney could learn the truth about his or her client’s case,” said Court Watch NOLA executive director Simone Levine. “Where that purpose is obstructed, the underlying facts of the case cannot be investigated and the larger purpose of the criminal justice system — that the innocent are protected and the guilty take responsibility — is destroyed.”
Representatives for Cannizzaro and Sheriff Marlin Gusman defended the jail recordings as needed for safety. Cannizzaro’s spokesman also defended their use by prosecutors as fair game. They said defense attorneys and their clients have no right to expect confidential conversations during jail phone calls because they’re told at the onset calls will be recorded and monitored. They also argued defense attorneys who do not take advantage of other options for private communications are potentially violating rules of professional conduct and should expect that those recorded phone calls could be used by prosecutors.
“The phone calls that law enforcement has access to are not privileged and can be used like any other statement that a defendant has made to or in the presence of law enforcement,” said Cannizzaro spokesman Ken Daley.
Some legal experts said the practice breaks no laws and violates no rules governing attorney behavior. But defense attorneys noted other local prosecutors don’t use that tactic. They also said the recordings have a chilling effect on meaningful attorney-client communication, and their use by New Orleans prosecutors amounts to yet another troubling example of unethical behavior at a district attorney’s office still facing criticism for issuing fake subpoenas and jailing crime victims and witnesses reluctant to testify in the past.
“It is just another indication of how some prosecutors will use whatever they can in pursuit of a conviction, and that should not be the proper role of a prosecutor,” said Peter Joy, a law professor at Washington University in St. Louis who specializes in legal ethics. “Prosecutors should be mindful of the rights of the accused and should not seek to basically have those rights ignored in an effort to get a conviction.”