It is a felony under California law for someone to record a conversation between a person in custody and the person’s attorney. It is listed under California Penal Code – PEN § 636 according to the San Francisco Chronicle. But video reveals Alameda County Sheriff’s Office habitually and intentionally engaging in this practice. A sergeant and a lieutenant discuss attorney-client privilege and how to work around it to justify violating this privilege when recording the conversation. The video was caught on the sergeant’s body camera. This egregious violation of rights is so profound the district attorney’s office spokeswoman Teresa Drenick said, “We have pulled all juvenile cases, whether charged or uncharged, that have been submitted by the Alameda County Sheriff’s Dept. since the start of this year.”
The public defender’s office made the accusations against the sheriff’s office and laid the allegations out in a motion filed Monday in Alameda County Superior Court.
The Chronicle reports:
In the video, a sheriff’s sergeant appears to say he’s made a habit of recording privileged conversations at the Eden Township Substation in San Leandro since January.
Revelation of the video has caused the sheriff’s office to open an internal investigation into the illegal practice. The district attorney’s office has thrown out the case involving the original juvenile referenced in the video. The DA’s office is also reviewing all cases involving juveniles submitted by the agency according to a department spokesperson.
The video of the juvenile’s conversation along with the body camera video, recorded March 15 from the point of view of Sgt. James Russell, was turned over by prosecutors to the public defender’s office as evidence. Evidence that the Alameda County Sheriff’s Office engaged in a violation of California Penal Code – PEN § 636. It remains to be seen whether the DA’s office will pursue charges against the department.
Russell is heard discussing the video recording of a juvenile in an attempted robbery case — the one that was later thrown out — with Lt. Timothy Schellenberg, who oversees the sheriff’s investigations unit out of the Eden Township Substation.
Brendon Woods, a public defender, asked a Superior Court judge to order the Sheriff’s Office to bar “eavesdropping and illegal recording of privileged communications” between attorneys and their clients. But that is not something that needs asking. Anyone who has watched a cop show such as Law & Order or First 48 knows that attorney-client privilege is sacred. On top of that, it is evident by Russell’s body cam footage that the officers are well aware of the law as they attempt to maneuver around it.
“It shouldn’t just be concerning to me as a public defender; it should be concerning to everyone as a citizen — that the government has taken on this position, or asserting some sort of authority, where they can violate people’s rights,” Woods told The Chronicle.
According to a spokesperson for the sheriff’s office, Sheriff Gregory Ahern is aware of the accusations along with the video proof and is “taking this very seriously.”
“As result of this, we have retrained and spoken with every officer assigned (at the substation), and made sure that they are up to date on the policy and the fact that attorney-client conversations are privileged and not to be recorded,” spokesperson Sgt. Ray Kelly said.
Again, these officers know the law. The actions of Russell and the lieutenant are not because they don’t know the law. It is because they are aware of the law and are trying to do legal gymnastics to exploit potential gaps or loopholes within the law itself.
Russell admits that the recordings are usually inadmissible in court but mentions the evidence would probably be deemed “inevitable discovery.”
Inevitable discovery is a legal exception to the rule that illegally obtained evidence is not admissible. It allows the admission of evidence that eventually would have been discovered legally by police.
“We have no way of telling whether those communications are recorded or not,” Woods said. “They’re not supposed to be — legally not supposed to be — and we expect that they’re not. But based on what’s been revealed to us by Sgt. Russell’s conduct, we have to be on guard that it can be occurring anywhere at any time.”
In the video, Russell also talks about installing a phone line so juveniles can talk to their attorneys.
“Why the recorder was left on is the big question here, and that’s what we need to address,” Kelly said. “Moving forward, we can assure people that the recorders will be turned off any time an attorney meets with a client.”
But trust must be earned. For clients to open up and speak to their attorneys while in the interrogation room, they must be assured that their conversations are truly private and confidential.
“When the attorney says, ‘This is protected; this is confidential’ … if the client can’t trust that, then the client won’t be as forthcoming,” David Levine, a professor at UC Hastings College of the Law said. “And without the exchange of information, the attorney is hamstrung in providing appropriate legal advice.”
Alameda County has come under fire in the past for this type of violation. A county prosecutor was placed on administrative leave in 2012 after it was revealed in court that she allegedly ordered the recording of a conversation between a murder defendant and a defense expert at Santa Rita Jail.