What do you get when you put some 30 lawyers in a room together and ask them to agree on something? Those masochistic enough to attend an upcoming federal court hearing could find out, but the punch line won’t be as funny as the setup might promise.
Two weeks ago, District Judge William J. Haynes set an April 26 hearing date to hash out several concerns surrounding a bundle of inmates’ recorded phone calls from jail, including attorney-client conversations, which some believe are privileged despite warnings by detention facilities that they’re being recorded.
What’s more, some of the recorded calls are between attorneys and clients who aren’t even involved in the case at hand.
The issue arose after federal prosecutors distributed the government’s discovery to the defendants in U.S.A. v. Adan et al, the case in which a federal indictment charged 29 individuals (two have since been dropped from the case because they aren’t yet in custody), many of whom are Somali and alleged by the government to be members or associates of Somali gangs.
Defendants in the case face charges of sex-trafficking juvenile girls, perjury, auto theft and credit card fraud. A large part of the government’s voluminous discovery for the case is contained on 142 discs of recorded inmate phone calls from a Davidson County jail and other detention facilities housing the federal inmates in the Adan case.
But one attorney determined that some of the calls on the discs turned over by the government to all of the defense attorneys in the case were unrelated. That sparked a debate over when attorney-client calls are privileged and what the attorneys should do with the discs to which currently, based on an stay by Haynes, they aren’t supposed to be listening.
When defense attorney Patrick Frogge realized the discs contained conversations between attorneys at his firm — Bell, Tennent & Frogge PLLC — and clients unrelated to the Adan case, he notified the U.S. Attorney’s Office. Both worked quickly to draft protective orders, hoping to keep other attorneys in the Adan case from listening to the recordings.
Among the propositions contained in the protective orders: All of the defense attorneys except Frogge would return the discs to the government, and Frogge would listen to the calls to sort out which are relevant. The U.S. Attorney’s office also pointed out that as a policy, its prosecutors don’t listen to attorney-client conversations.
A flurry of subsequent responses filed in the case by various attorneys has created a back and forth that’s become more about the attorneys than defendants in the case. Many of the attorneys agreed to return the discs, while others said they should be allowed to listen to the calls so they might be able to glean something helpful to their Adan defendants, or perhaps to other defendants in unrelated cases.
Haynes has yet to sign any proposed protective orders, though he did issue a stay ordering attorneys not to listen to the recordings until he rules. For the hearing on April 26 (provided it doesn’t get bumped back), Haynes has asked the all of the attorneys to convene and discuss the following questions:
• Are recorded conversations between attorneys and inmates privileged, particularly in light of revisions to the Davidson County Inmate Handbook?
• Were the defendants’ attorneys aware conversations between them and their clients were recorded?
• If there is potential evidence that helps a defendant’s case, should the jail tapes be destroyed without reviewing what’s on them?
• In light of the victims who are under 18 and allegedly being trafficked for commercial sex, could these tapes contain unredacted victim information?
• Can any of the defendants prove prejudice based upon the dissemination of the jail calls as part of the discovery?
The policy of the Davidson County Sheriff’s Office is to record all phone calls, but its staff is directed not to listen to those calls between attorneys and clients, although the sheriff’s office may provide those calls to third parties upon request.
In the Adan case, the government pulled jail calls by area codes and numbers that defendants in the case called frequently. The U.S. also pulled calls based on PIN numbers given to inmates, which they use to place calls. The trick there is, inmates barter and swap PIN numbers to conceal the phone calls they make.
When the government determined that one of the defendants used a PIN number other than their own, prosecutors pulled calls by those PIN numbers as well. The unintended effect was the inclusion of calls outside the realm of the Adan case, to the dismay of other attorneys and defendants in other cases.
As for calls pertinent to the Adan case, the U.S. has established a firm stance that attorney-client conversations aren’t privileged when an inmate makes a call and knows it’s being recorded. It’s the same, according to the U.S. attorney, as if a third-party individual stood by listening to the conversation, thereby throwing any presumption of confidentiality out the window.
In the government’s filed response to various objections to the proposed orders of protection by the defendants, it states: “The United States position is that any calls made over the inmate phone system are not privileged. Again, the United States submits this issue is moot as the United States has consistently agreed not to listen to any calls between an inmate and an attorney.”
But if the government has agreed not to listen to the calls if a protective order is issued, why include the calls in presenting its discovery in the Adan case?
U.S. Attorney for the Middle District of Tennessee Jerry Martin explained that prosecutors, under “rigorous discovery obligations,” turn over more potential evidence than may be necessary on the chance they may use some of it later. The government’s case would otherwise be jeopardized if it tried to introduce evidence not presented in discovery.
In a response filed by Frogge, he states the government made an “obvious mistake” on which other attorneys are hoping to “capitalize.”
“We produced all of those calls in order to fully comply with our discovery obligations,” Martin said. “So I don’t agree that it was a mistake.”
But now the cats — or defense attorneys, as it were — are out of the bag. According to Martin, “The controversy that necessitated this hearing is really a direct result of some defense lawyers in the bar wanting to listen to the attorney-client conversations — jailhouse phone calls of other defense lawyers.”
Now, with nearly 30 defense attorneys sitting on a pile of discovery discs they can’t listen to, it’s up to the judge at next week’s hearing to shore up the issues before the case can move forward.