Michael Fitzwater's alleged exploits have exposed troubling flaws in the county jail's phone network. Meanwhile, the fallout from an ongoing case in federal court could dissuade inmates from using jailhouse phones at all at least to call their lawyers.
In May 2005, police arrested Lloyd Jamison in the Mission on charges of illegal possession of a firearm, after an alleged dispute between him and a woman. Over the next year, Jamison, held at a jail in Oakland, called his court-appointed attorney, Ian Loveseth, on numerous occasions to talk about the case.
Calls made by inmates from California jails and prisons begin with an automated warning, heard by both the dialing and receiving parties, that the conversation may be taped or monitored. Despite that caveat, federal defense lawyers generally consider calls from inmates protected by attorney-client privilege which bars authorities from exploiting confidential discussions and trust that prosecutors will refrain from listening to recordings of such exchanges. Or will admit when they do, as happened in the Jamison case.
Last month, federal Prosecutor Susan Jerich disclosed that, while reviewing recordings of Jamison's jailhouse calls, she inadvertently heard about 30 seconds of a discussion between him and Loveseth. Heeding the advice of an ethics expert in the U.S. Attorneys Office, Jerich recused herself from the case, citing her unintended breach of Jamisons attorney-client privilege.
But a week later, Jerich doubled back, apparently at the behest of her bosses. In a court brief, she argued that Jamison, by virtue of hearing the phone systems automated warning, waived his right to confidential conversations with Loveseth.
The assertion elicited sharp criticism from private and public defense attorneys, who fear a trend in the offing. They contend that prosecutors listening to recorded calls between inmates and their lawyers would erode the Sixth Amendment rights of the accused to effective counsel. Compelled to drive to jails scattered across the Bay Area whenever they wanted to discuss cases, public defenders would spend more time in traffic than responding to client concerns.
If [inmates] can't call us, says Geoffrey Hansen, chief assistant of the federal Public Defenders Office, then there's no practical way for us to represent them in the way we need to do.
Similarly, with court-appointed lawyers earning almost $100 an hour to represent indigent clients, court expenses could soar owing to additional travel time. I dont think the court wants to be paying me to sit in my car, Loveseth says. He has asked Judge Vaughn Walker to dismiss the case against Jamison, claiming the feds violated the attorney-client privilege.
Defense attorneys, aware that jailhouse calls are taped, typically wait to discuss sensitive aspects of a case until they can meet with an inmate in person. Given the automated warning on such calls, Luke Macaulay, spokesman for the U.S. Attorneys Office, likens those conversations to talking on a crowded elevator. If someone overhears that, its no longer privileged, he says.
Former public defender Peter Keane, dean emeritus of the Golden Gate University School of Law, agrees with the elevator analogy. But he adds that most defense attorneys have the belief that the prosecution isnt listening to their discussions with [inmates].
Exactly what Jerich heard Jamison and Loveseth discuss remains unknown. But in her court brief, Jerich, who declined to comment to SF Weekly, insisted that prosecutors dont plan to use the recorded calls in Jamisons evidentiary hearing or trial.
Even so, by pushing its position in a relatively minor case Jamison could face 10 years in prison if convicted the U.S. Attorneys Office appears in step with a shift in Justice Department policy, Hansen says. Indeed, speculation persists that prosecutors are listening to recorded inmate calls in cases with bigger stakes, both in San Francisco and elsewhere. If true, the theory suggests the Bush administrations campaign of electronic surveillance continues to grow.
To call the whole thing Kafka-esque, Loveseth says, would be an understatement.