The Price of Convenience at Travis County Jail

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.

22 thoughts on “The Price of Convenience at Travis County Jail

  1. Jeff

    After the defense attorneys win their case, will they then start visiting their clients using the state’s videoconferencing system again? Don’t tell me the answer. I don’t want to know.

      1. Brett Middleton

        The NSA is still out there, even if you get a notarized promise witnessed by God Almighty Himself from the sheriff. If nobody knew that when the Securus problem was discovered, there’s no excuse for not knowing it now.

  2. Lurker

    This is in line with your earlier argument about yellow pads: they can’t be hacked and the rules on their search and seizure are much clearer and afford better privacy than similar rules on eleftronic files.

    This is also the reason why I like snail mail. It is extremely unlikely that it would be intercepted, and its non-electronic form makes even tracking the traffic difficult and work-intensive. Of course, it the other corrspondent is in prison, snail mail is no more secure than a phone call, but inter liberos, it is pretty safe.

  3. Charlesmorrison

    So there’s a box they must check to not turn the recordings over to the state? Cool, now everyone knows.

    1. Brett Middleton

      Given the government’s problem with checking the proper boxes on forms, perhaps there is a simple solution. Reverse the default option so that recordings are not made or turned over to the state unless the proper boxes are checked. Instead of requiring a decision as to whether privacy should be preserved, require a decision as to whether privacy should be violated.

      This way the benefit of any mistakes will accrue to the least powerful party instead of the most powerful, resulting in a little more balance. Meanwhile, the government will be more careful in filling out this paperwork. They won’t want to fail to check the box whenever they can, but they won’t want to be in a position of saying “I decided to check the box” in cases of doubt, because that sounds a whole lot more incriminating than “I just forgot to check the box.”

        1. Charlesmorrison

          I suppose my sarcasm didn’t come through too well in my earlier post. As to the justification advanced by police department/prosecutor(s) it would, at best explain the retention of recordings. Even assuming, arguendo, that a lack of training or other factors led to the wrongful retention of recordings, that doesn’t explain the plain usurpation of the 6th Amend. Unless, of course, there really was such a box I jokingly referred to.

          It is a total lack of respect for a client’s constitutional rights, and a total lack of professionalism towards their counsel that is the only conceivable explanation. I’m unimpressed.

          I can only imagine the look on the defense attorney’s face when the prosecutor says, “oh, and there is supplemental discovery for you. It’s your conversations with the defendant. We expect your reciprocal discovery to include any recorded conversations you may have between our office and the detectives.”

            1. Brett Middleton

              Nah. I was holding my Might Power of Sarcasm in check for a change. It was more in the nature of thinking that there isn’t anything wrong with treating symptoms in an attempt to keep the patient alive while looking for an actual cure.

              For example, nowadays you have to opt into spammy stuff when signing up for a Web site instead of needing to remember to opt out for all the newsletters and notices. This has kept a lot of spam out of my mail, though it is far from being a cure for spam.

              How many government forms are rigged so that omissions (accidental or “accidental”) end up favoring government power over individual rights? Didn’t we just go through this with the No Fly List brouhaha? Could it hurt to turn the tables on this, even though it isn’t the root problem?

            2. SHG Post author

              There are certain things that are well beyond the opt-in/opt-out level, one of which is recording privileged communications and another is sending them to the prosecution. Save the forms issue for another time. As I said before, this isn’t a check the box problem.

  4. Patrick Maupin

    Travis county is just trying to keep up with the largest city therein (namely Austin, wherein resides your humble correspondent).

    It is a difficult proposition, though. Inside Austin, the First Rule of policing is routinely applied against egregious miscreants such as jaywalkers.

    When a few citizens recently had the temerity to question the videotaped treatment of one jaywalker, our esteemed police chief Art Acevedo reminded the citizenry exactly how good we have it:

    “In other cities there’s cops who are actually committing sexual assaults on duty, so I thank God that this is what passes for a controversy in Austin, Texas!”

    There are multiple good lessons here for us to all remember. I, for one, will not use electronic devices to communicate with my lawyer the next time I am a guest of the county because I crossed the road at the wrong location, and will, in fact, be very thankful if those in custody are as unlikely to sexually assault me as the custodians are claimed to be.

    1. SHG Post author

      Tell me that you at least thought to yourself, “I wonder how Greenfield will take my devolving into a completely unrelated story, the only thin nexus is a strained and irrelevant connection via Austin?”

      1. Patrick Maupin

        From my perspective, they are both merely symptoms of the pernicious local political disease, although I did, in fact, suspect you might find it marginally relevant if at all, and wasn’t sure whether the connection was too tenuous for the filter.

        1. SHG Post author

          People tend to view all of this as symptoms of the same pernicious disease. That’s what makes it a problem. N’est pas?

          1. Patrick Maupin

            What makes it a problem isn’t [Ed. Note: Balance deleted as so wildly irrelevant, off-topic, just plain simplistic, as to give me a headache. Warning: Don’t give me a headache.]

          2. Patrick Maupin

            The crowd lauds nuance, and precision in thought
            And observes that bumper stickers move the Overton Window
            At the Washington Post.

            The crowd has no Washington Post or courtroom,
            and advocates here today, forgetting, perhaps,
            That unrestrained advocacy consumes the entirety
            of the education that feeds it.

            But Greenfield forgets not!

            With scalpel in steady right hand and chainsaw in unsteady left
            Greenfield the sculptor moulds comment and commenter alike.

            Barleycorn may be his greatest creation.
            Or an experiment gone terribly awry — who can say?

            Headaches, real and painful enough when received
            Are seldom intended or sent.

            1. Patrick Maupin

              Just as well. I could be no more than a pale imitation of the master in any case.

  5. Matt B

    Here, the public defender runs (and installed) the video links. I don’t believe outside defense counsel can use them (unless they’re conflict) but it seems that these systems are of most use to defense, especially the public defender since they have the largest number of cases; most private defense lawyers would probably be more comfortable with the public defender managing the systems.

    It didn’t stop some of them from unplugging them when they were in the interview rooms, but who can blame them?

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