For those who have never had the pleasure, visiting a client in jail is not one of the more pleasant aspects of a criminal defense lawyer’s job. Jails smell weird. The screws are not always the most accommodating of people. It wastes a huge amount of time, as a five-minute conversation takes hours to accomplish. And if you’re a woman, don’t go near the joint with an underwire bra or provocative clothing. Oh no.
As an aside, it’s not entirely pleasant for clients either.
So as signs were posted in attorney visiting rooms alerting us to the miraculous convenience of video chatting with inmates, who couldn’t be happy? After all, most of us have computers, and most of our computers have cameras in them these days. And we could sit at our desks, or in Starbucks sipping a mocha frappucino as we felt deep empathy for our client’s eating a sandwich of American cheese and the finest institutional bologna available, and engage in meaningful, privileged communication.
Except Travis County jail.
A group of Austin defense lawyers and prisoners is suing the top law enforcement agencies in Travis County, alleging the private Dallas firm hired to tape inmate visits at county jails is illegally capturing their conversations with attorneys and turning over the recordings to prosecutors.
The Austin Lawyers Guild, the Prison Justice League and several independent defense attorneys are seeking that a federal judge order authorities to stop the practice, which they call “unconstitutional eavesdropping and an invasion of attorney-client communication,” according to the lawsuit filed Tuesday in a U.S. district court in Austin. They say they also want the sheriff’s office and Securus Technology Inc. to destroy all the copies of such phone and jail calls already in existence, which could number in the thousands.
Cool name, Securus. Get it? Secure. Us. Secure, as in we won’t record your privileged communications and you can trust us because, well, it’s right there in our name.
And the Travis County Sheriff doesn’t deny this happened. Indeed, they concede it, but it wasn’t deliberate.
The Sheriff and DA say the recorded attorney client conversations were mistakes, the result of deputies failing to check the appropriate boxes on computerized forms. But those mechanisms are internal to the Sheriff and there’s no mechanism for defense counsel to ascertain whether their conversations were recorded or shared with prosecutors unless the state later hands them over, by which time any strategic damage has been done. Said Austin Criminal Defense Lawyers Association president Bradley Hargis, “Basically, we just have to trust the sheriff and prosecutors not to listen to these calls but we have no way to verify they won’t.”
The ancient defense of stercus accidit, which no doubt brings cold comfort to the attorneys and defendants whose conversations were handed over to prosecutors, who listened to them and felt very bad about it afterward.
There is no question that technology can provide great efficiency and convenience to the law, Google glass notwithstanding. But at what price? This is the perpetual conundrum, invariably ignored by tech lovers. Criminal defense lawyers cannot be so cavalier with the rights of their clients.
In a recent 60 Minutes segment, it was revealed that the computer equipment used for launching our Minute Man nuclear missiles was installed in the 1960’s, long before the internet was a gleam in Bill Gates’ eye. And they have no intention of upgrading the equipment, because it’s incapable of being connected to the internet. The rationale is both clear and significant: this is the only way to guarantee that no one, no how, can hack into our nuclear missile computers.
There’s a critical message here, about convenience, trust and the limitations of technology. All the assurances in the world won’t prevent a violation of our clients’ basic rights, the right to communicate with counsel without the prosecution recording and listening, because it ultimately depends on unverifiable trust. And, sadly, we do not have the authority to rely on our adversary’s trust.
But they can’t be used in court, right? So what’s the big deal?
Discussions between counsel and client reveal a great deal, from tactical matters to investigatory avenues to the defendant’s tolerance for the fight. The question isn’t whether it can be used in court against a defendant, but far larger, far more fundamental, issues of information upon which the nature of the relationship between attorney and client exists.
If a defendant does not believe he can speak freely with his lawyer, then the ability to prepare a meaningful defense is irreparably impaired, and the defendant’s right to effective assistance of counsel is undermined.
So while the idea of engaging in discussions with a detained client via video chatting seems enormously convenient, and clearly advantageous to the lawyer who prefers not to waste half a day to ask a single question of his client, it can’t be done. This revelation makes clear that this is not a secure communication, and there is no way to verify that the privilege has been honored.
And the same is true of nearly everything that travels through those cool tubes. It’s not that Luddites like me hate technology, but that we recognize that there is no way to be guaranteed that our use of technology doesn’t come at a price our clients can’t afford to pay.
Yes, it sucks. Yes, it’s real. Sorry, but the client’s privilege comes first.