Maine’s public defense agency is still working to determine how many inmate phone calls with attorneys may have been improperly recorded and sent to prosecutors, with four known instances happening since 2015.

The state is investigating the extent to which Maine county jails — and phone companies they’re contracted with — recorded and released privileged phone calls between attorneys and inmates.

The investigation started with fervor when allegations of a possible violation of a Somerset County Jail inmate’s right to privately speak on the phone with his attorney surfaced in late April, after the Maine Office of the Attorney General reported it had accidentally obtained recordings of their calls.

In May, public defense attorneys reported to the Maine Commission on Indigent Legal Services at least three other times over the last five years that calls protected by attorney-client privilege were released to prosecutors by three jails. One attorney also reported an instance of a jail allegedly sharing calls between a witness and an attorney seven years ago.

John Pelletier, executive director of the state public defense agency, is trying to determine if that is the extent of the problem.

“There may be no (other) calls, there may be two calls, there may be 200 calls — we don’t know,” Pelletier said.

In addition to the 2020 incident in Somerset County, the same jail released an attorney’s calls with an inmate in 2015, as did the Two Bridges Regional Jail in Wiscasset, according to a report Pelletier wrote to the commission on May 29. Cumberland County Jail in Portland released protected inmate calls earlier this year, Pelletier said. Cumberland County Jail also allegedly released calls that a witness made from the jail to a defendant’s attorney in 2013, according to the document.

No additional cases have been discovered since June 18, Pelletier said.

“What we’ve discovered is four instances where attorney-client calls were recorded and came into the possession of prosecutors,” he said. “I think fortunately for Maine, we did not discover a situation where the prosecutors were readily listening to these calls, using them in plea negotiations or actually litigating the admissibility of calls in cases.”

Pelletier said that has happened in other states and some courts have allowed the calls to be used as evidence.

Pelletier is working with the jails to gather additional information and is considering “having the recordings purged from the system,” once he understands the scope of the problem, according to the written report. Recorded calls are typically stored for six months to two years.

Bob Cummins, a Maine defense attorney appointed to the commission in 2019, said a broader investigation by the governor’s office or Maine Supreme Judicial Court may be necessary. Cummins is a former chairman of multiple American Bar Association committees on professional discipline and conduct.

“If we have had for some period of years a procedure whereby lawyer-client calls are being recorded, we’ve got a serious problem,” he said. “With all due respect to judges and lawyers and prosecutorial authorities, we know things go astray. This is a problem that needs not only attention in court to deal with the immediate problem but also a more comprehensive look at this whole matter of recording.”

The commission is awaiting the jails’ responses before requesting a larger investigation. But the specter of a constitutional challenge to the widespread recording of inmate phone calls has already emerged.

Communications between an attorney and client are confidential and protected under attorney-client privilege. Last month, the American Civil Liberties Union of Maine Legal Director Zach Heiden told Pine Tree Watch that “any interference by the government between an attorney and a client in a criminal matter raises serious constitutional questions.”

On Monday, ACLU spokeswoman Rachel Healy said the organization does not have plans to take legal or legislative action and believes it’s up to the Maine Commission on Indigent Legal Services to fix the problem.

To prevent the future recording of attorney calls, Pelletier sent the jails a list of phone numbers for attorneys employed by the commission. The list did not include private criminal defense attorneys.

Roger Katz, an Augusta attorney and former state legislator, said the need to protect the privacy of attorney-client phone calls extends to all inmates, not just those who cannot afford their own attorney and are provided one by the state. Katz was appointed to the eight-member commission in 2019.

“The good news is it seems as though despite these failings prosecutors have been acting ethically,” Katz said. “The bad news is it’s a system rife with problems. But the good news is these are totally fixable problems.”

Recording and requesting calls

Jails that have released attorney-client calls maintain that recording inmate calls is necessary to protect victims of crimes. Capt. Don Goulet of the Cumberland County Jail said in a phone interview that police have a legitimate public safety interest in recording calls inmates make to family or friends, particularly in cases involving domestic violence.

“We have a significant ongoing issue with people contacting their domestic violence partner,” he said.

Police or prosecutors may also request recorded phone calls from jail if they suspect the inmate of tampering with a witness. But police and prosecutors don’t have to provide evidence of their suspicions and can request calls made by an inmate without a specific reason, attorney Robert Ruffner of Portland said at the commission meeting.

Ruffner recalled an instance in which he explained to his client what would happen in court the next day. The client then called his parents from jail to talk about his case. The next morning, the prosecutor repeated things to Ruffner that he thought were confidential between him and his client, but the prosecutor knew from listening to the recordings of his client’s calls with his parents. Ruffner advised his client to stop sharing details over the phone with family members.

This is an example of why there should be guidelines that specify when calls can be listened to and prevent prosecutors from listening in to private conversations without good cause, he told commissioners.

Joseph Jackson, director of the Maine Prisoner Advocacy Coalition, said in a recent phone interview that inmates have long been aware that most of their calls are recorded. But the practice of recording calls without discretion sparks concern of a “police state,” in which law enforcement is afforded too much power over citizens without sufficient accountability.

“It’s hard for me to separate what we see now with a big uprising in our country and disassociate it from the practices we see taking place inside,” he said, referring to the nationwide protests against police violence following the killing of George Floyd by an officer in Minneapolis. “It’s hard to imagine an environment that’s more trauma-filled than when (officers) have control and qualified immunity.”

Jackson was incarcerated in Maine for 19 years on a manslaughter conviction before becoming one of the state’s leading prisoner advocates.

Further complicating matters is that Maine jails have been closed to in-person visits for months because of the coronavirus. Although some jails have reopened for in-person attorney meetings – with restrictions – for months the only way inmates could speak to their attorneys was by phone.

A year before change? 

With the Legislature out of session, major change won’t be immediate.

State Rep. Jeffrey Evangelos, I-Friendship, recommended the commission work with the Legislature’s Judiciary Committee to expressly prohibit the sharing of attorney-client calls with anyone. But it would likely be a year before a bill is passed and goes into effect, Katz said. After that, it will be up to the jails to figure out how to comply.

Without a central system overseeing county jails in Maine, that’s an imperfect solution, said Jackson. Still, he said the coalition would support the legislation.

Once the issue of recording inmate calls with attorneys is addressed, the commission may also need to address inmate privacy, said Commissioner Sarah Churchill, a private defense lawyer on the commission. The phones inmates use are sometimes located in areas where other inmates can hear one end of the conversation, she said.

“To the extent that we solve the recording problem, I think we still have a confidentiality problem,” she said. “If somebody else can overhear the conversation, then the whole entire privilege is blown out of the water.”

Katz suggested that legislation also require jails to provide space for inmates to make private calls or have private visits with their attorneys.

Jackson agreed, pointing out that these conversations often take place before an inmate has received a conviction.

“The rights of clients in a (Maine) county jail are less than a client that has been sentenced,” he said.

‘Too haphazard’

One of the most troubling findings so far is that some of the jails appear to have known some of the calls should not have been released.

Somerset County Jail has twice released privileged calls to prosecutors. In one case in 2015, the jail produced numerous CDs with an inmate’s phone calls, including one that contained recordings of 55 calls between an attorney and the inmate.

Though the attorney and prosecutor involved with the case ultimately found the disc had not been turned over to the prosecutor, Pelletier said its creation “reflects an awareness that these calls involved privileged material.

“And although the matter was vigorously pursued by defense counsel and taken seriously by the court, I got no indication of specific reforms at the jail that came about as a result,” Pelletier added.

Under the existing system, attorneys are required to set up an account with the jail’s phone vendor or otherwise alert the jail that their calls are not to be recorded.

“On such a crucial issue, it’s too haphazard and too burdensome on the attorney,” Pelletier said. “It seems to me that attorney-client conversations shouldn’t require a bunch of hoops to ensure that it’s confidential.”

In the Cumberland County case earlier this year — the most recent to have occurred — the jail released seven inmate calls to the Buxton Police Department, which shared them with the district attorney’s office. A paralegal allegedly identified the error before anyone listened to the calls, according to Pelletier’s May 29 report. Goulet, of the Cumberland County Jail, said that the attorney in that case had not registered his phone number with the jail’s phone vendor.

Goulet said he and Sheriff Kevin Joyce have since sent a letter to attorneys and put a message on their website reminding them that they need to create an account and register with their phone system to protect the privacy of their calls with inmates.

In Somerset County, Sheriff Dale Lancaster told Pine Tree Watch in May that it’s up to the inmate to provide the jail with their attorney’s phone number so if calls are requested, the phone vendor can prevent a recording.

Katz said it’s up to several parties to make sure calls aren’t recorded.

“There’s shared responsibility of the jail, the provider, the client and the attorney,” he said.

Recording inmate calls has become “nearly universal” across the country following a 1984 Supreme Court decision that ruled inmates have a “diminished right of privacy” under the Fourth Amendment, Pelletier reported to the commission in June. But calls between attorneys and their clients should not be recorded, he said during a meeting with the commission.

Inmate phone calls have been recorded in Maine since at least 2006, when Two Bridges Regional Jail hired GTL to run its phone system. The Virginia-based company provides communication services for more than 1.6 million inmates in 2,300 facilities. GTL also provides phone services in the Somerset County Jail.

Maine’s other 13 county jails have contracted inmate phone services to Securus Technologies, a Dallas-based company that services 1.2 million inmates in the U.S. in more than 3,400 public safety, law enforcement and corrections agencies.

In the recent cases in Maine, prosecutors or a paralegal in the prosecutor’s office stopped listening when they realized the calls were sent to them in error and reported the incidents to defense counsel, according to Pelletier. He also acknowledged “we don’t know what we don’t know” with regard to whether there are additional instances or whether prosecutors have at times used information from these calls to help their case.

Pelletier told the commission it needs to discuss how best to ensure attorney-client calls are not recorded. In addition, if a request for inmate calls is made, the calls should be screened for the attorney phone number before they are given to the police or prosecutors, he said.

“The situation is that the default rule is that these calls are being recorded,” he said. “The question is, how do we make sure that attorney-client calls are somehow exempted from that system?”

Pine Tree Watch Staff Writer Samantha Hogan contributed to this report.

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