Maine lawmakers say prisons ‘must stop’ recording lawyers’ calls
Maine County jails “must stop” recording and listening to calls inmates make to their attorneys, Maine attorneys and lawmakers said this week. Governor Janet Mills instructed the Department of Corrections to work with lawmakers on a solution.
Troubled by a months-long investigation by The Maine Monitor that found prisons routinely log calls from attorneys and share some of them with prosecutors and law enforcement, state lawmakers are considering a proposed a law that would penalize a person who “knowingly listens” to a conversation between a lawyer and a person in police custody.
Prosecutors have asked lawmakers to reject the bill, which would remove them from cases and potentially expose them to felony charges if they listened to an in-jail recording of an attorney-client conversation.
Yet the state risks systematically depriving imprisoned defendants of their constitutional right to counsel by continuing to allow prisons to tape calls with their attorneys without scrutiny, said Justin Andrus, executive director of the Maine Commission on Indigent Legal. Services, who proposed the bill.
“Governor. Mills believes that Maine state prisons and county jails must protect the confidentiality of privileged communications between an inmate and his or her attorney, a right afforded to them under the Constitution,” wrote Lindsay Crete, press secretary to the governor, in a statement to the Maine Monitor.
Mills asked the Department of Corrections to work with the bill’s sponsor “to ensure that the legislation properly protects these privileged communications without unduly impeding the department’s ability to protect staff at its facility and other residents,” said Crete.
‘Hazard reduction bags’:York County Jail distributes Narcan when inmates are released
Rep. Thom Harnett (D-Gardiner), who sponsors the bill and chairs the state Judiciary Committee, had not heard from the department as of Tuesday. The committee was due to discuss the bill on Wednesday.
“Doing nothing is not an option. It is simply not acceptable for the specter of attorney-client calls to be recorded by the state, because one has no control over what happens to them after it happens,” Harnett said.
Three murder suspects awaiting trial in Maine jails were recorded talking to their attorneys, and some calls were shared and partially listened to by Maine state police, a Maine Monitor investigation found. . Detectives heard enough to recognize the lawyers, but not the substance of the conversations, police and prosecutors said.
The bill as drafted would prevent investigators and prosecutors who have received calls from attorneys, “whether or not the person has reviewed the substance of the document, record or information”, from continue to work on the investigation or prosecution. Eavesdropping on attorney-client conversations would be a felony and punishable by a civil fine of $10,000.
Assistant Attorney General Megan Elam, the prosecutor handling the three murder cases identified by The Maine Monitor, strongly opposed parts of the bill at a recent meeting of the Criminal Law Advisory Commission that advises the Legislative Assembly.
“You are criminalizing involuntary behavior. You make it a crime when someone gets information that they had every reason to believe didn’t include confidential communications and the second they hear the confidential communication, they stop listening. It seems wrong to me,” Elam said.
Elam previously told the Maine Monitor that she had not listened to calls from attorneys in the three open investigations into the murders.
The Maine Attorneys Association, on behalf of the state’s district attorneys, said it supports the intent of the bill, but not the penalties.
“All phone calls from the jail are recorded,” said Andrew Robinson, the Maine three-county prosecutor. “…It’s not because prisons target discussions between a lawyer and his client. This is because all those who call in the prisons, their calls are recorded.
Prosecutors already have an ethical obligation to alert defense attorneys and the court if they receive inside information, Robinson said. The Maine Monitor found that the state attorney general’s office and many district attorney’s offices do not have written policies on what to do when recordings of attorney calls are discovered.
“Eavesdropping on phone calls between a lawyer and an incarcerated person should be against the law. Shame on Maine prosecutors for opposing it,” said Rep. Jeff Evangelos (I-Friendship).
“Scope of the problem”
Nearly 1,000 attorney calls were recorded by Androscoggin, Aroostook, Franklin and Kennebec county jails between June 2019 and May 2020 — affecting nearly 200 defendants and 46 law firms, recordings obtained by The Maine Monitor. Court records from other counties show surveillance dates going back to at least 2014.
The number is almost certainly much higher: Eight county sheriffs who run prisons did not cooperate with The Maine Monitor and refused multiple requests for right-to-know data.
“We’re never going to understand the magnitude of the problem if we don’t look at what happened in the past,” Harnett said.
He was also concerned about the lack of transparency and inconsistency in the counties’ response to requests from the Maine Monitor for records of attorney call recordings.
Many defendants were recorded by prisons as they called their court-appointed lawyers, according to data and court records. Maine is obligated to provide an attorney at public expense to anyone who cannot afford their own attorney. Andrus, the state’s indigent legal services chief, said he was “disappointed and horrified” by recent Maine Monitor reporting.
“We need a legislative solution, and if we can’t get it, then someone has to get a legal solution,” Andrus said.
The fear is not that a prosecutor will try to use a recording of a privileged call as evidence at trial, but that information from the conversation will be used to advance an investigation.
The Maine Association of Criminal Defense Lawyers, a professional organization for members of the state’s private defense bar, supports the legislation and said it gives “teeth” to rules and laws that already prohibit listening to their calls with imprisoned clients. The bill would also improve lawyers’ and clients’ access to joint review of documents in prison.
Civil rights lawyers also support the bill. Meagan Sway, policy director for the ACLU of Maine, said that despite decades of U.S. Supreme Court rulings interpreting that defendants have the right to communicate privately with counsel, “maine prisons and the for-profit telephone companies with which they contract do not obey the Constitution.”
Both groups have recommended that the bill not make it a crime to eavesdrop on conversations because it could be widely enforced, and they oppose expanding the criminal code.
Notably absent was any comment from the Maine Sheriffs Association. Sheriffs are responsible for operating Maine’s 15 jails and contracting out telephone services to private companies.
“I think silence can speak loudly sometimes,” Harnett said. “I can’t talk about what they will convey with their silence. Again, you have prosecutors, you have legislators, you have the head of the statewide indigent legal services program all saying, “We have a problem here.” This is not helpful when the place where this problem exists to the highest degree chooses not to intervene.
The Maine Sheriffs Association did not respond to multiple requests for comment.
Sheriffs have previously said monitoring inmates’ phone calls and mail helps keep drugs out of jails and ends harassment of crime victims and witnesses. In domestic violence cases, calls are monitored to ensure court orders prohibit contact tracing.
The legislation as drafted would require prisons to look back several years and determine whether their phones were recording calls from lawyers.
The defendants would then have two years to file a post-conviction review in response to learning their attorney-client appeals were recorded by a prison. All other post-conviction reviews have a one-year limitation. Prosecutors have asked lawmakers to change the bill to say defendants must show that the tapes had a “substantial impact on the outcome of the defendant’s case.”
Lawyers are struggling to determine whether they were recorded by a prison, let alone gather enough information to suppress any evidence that may have been gleaned from those calls. Several defense attorneys said they learned they had been recorded by a prison when a Maine Monitor reporter contacted them.
Even when an attorney is alerted to the recordings, there is no easy way to have a case dismissed.
Steven Clarke has been fighting for five years to overturn a guilty plea. He said he did not understand that by accepting a plea deal, the court would stop considering whether his charges should be thrown out because Somerset County Jail recorded and shared with prosecutors the 79 appeals he he had with his defense team, reported The Maine Monitor.
Recording and distributing lawyers’ calls has a chilling effect on communication between imprisoned defendants and their lawyers, Andrus said.
“It must be very, very costly for law enforcement or the district attorney’s office to make that mistake,” Andrus said.
This story was originally posted by The Maine Monitora local journalism product published by the Maine Center for Public Interest Reporting, a nonpartisan, nonprofit civic news organization.