Court Uneasy, but Unpersuaded, in Jail Case

ALBANY, N.Y. (CN) – New York’s high court Tuesday expressed concern about the potential for abuse in monitoring phone calls of pretrial defendants who can’t make bail, but refused to overturn a conviction that used them.
     Marcellus Johnson was remanded to Rikers Island for nearly four months after his arrest in Manhattan on robbery and larceny charges: allegedly stealing the wallet and cellphone of a drunken tourist in 2011.
     At Rikers, he made dozens of telephone calls to family and friends, which authorities monitored under a New York City policy that permits recording of all inmate phone conversations, except to a select handful that includes attorneys, physicians and the clergy.
     A prosecutor asked for the recordings, which the policy allows, and used excerpts from nine of the calls at Johnson’s trial.
     The conversations contained incriminating statements about the crime and Johnson’s use of “offensive and vulgar language” in discussing the victim, court records show .
     Johnson tried to exclude the recordings at trial, but Manhattan Supreme Court Justice Patricia Nunez allowed them. A jury convicted Johnson as charged and he was sentenced as a second felony offender.
     Johnson argued on appeal that the calls should not have been admitted, but the Appellate Division’s First Department in Manhattan “summarily rejected” the challenge in 2014.
     The Court of Appeals affirmed the finding Tuesday.
     “(W)e are constrained by the law applicable to the arguments, as narrowed by defendant, to conclude that on the record before us defendant is not entitled to a new trial,” Justice Jenny Rivera wrote for the unanimous seven-member court.
     However, Rivera and Justice Eugene Pigott, who concurred in a separate opinion, expressed some uneasiness.
     “Our resolution of the narrowly drawn issues presented on this appeal should not be interpreted as this court’s approval of these practices,” Rivera wrote.
     Pigott added: “The current arrangement between the [city] Department of Correction and the district attorney’s office creates a serious potential for abuse and may undermine the constitutional rights of defendants who are financially unable to make bail,” Pigott wrote. “Something needs to change.”
     Rivera pointed out the important role of “gatekeeper” that criminal trial judges hold, which “remains unchanged and necessary to ensure compliance with constitutional mandates and the usual rules of evidence and criminal procedure.”
     In oral arguments in February, Johnson decried the “wholesale harvesting of intimate conversations” and dissemination of the information to the district attorney.
     He claimed the policy violated his Sixth Amendment rights, exceeded the authority of the Department of Correction, and occurred without his consent.
     The Court of Appeals found those claims “either without merit or unpreserved.”
     Rivera said the Sixth Amendment right to counsel prohibits the use of incriminating statements that are “deliberately elicited from a defendant by a government agent.”
     But she said the Department of Correction did not serve as an agent of the state when it recorded inmate calls and turned them over to the district attorney. It did not induce or coerce Johnson “to call friends and family and make statements detrimental to his defense.”
     The Legal Aid Society and the Brooklyn Defender Service supported Johnson’s contention in amici curiae briefs stating that due to the limited access detainees have to outsiders – including their attorneys – that the department should be considered an agent of the state.
     But Rivera wrote that “however accurate this description may be of the realities” of pre-trial detention at Rikers Island, it did not establish that the department acted as an agent in Johnson’s case.
     The court rejected Johnson’s argument that the department exceeded its authority by turning over recordings that were supposed to be collected for the “legitimate purpose of monitoring threats to institutional security.”
     Johnson “fails as a threshold matter to identify a statutory right violated by the department,” the opinion states.
     The argument against consent also lacked merit. The call-monitoring policy is stated on signs near telephones and in the inmate handbook, and offered as a recording when calls are placed – in both English and Spanish, the court noted.
     But Johnson contended he did not consent to the dissemination of his recorded conversations simply by using Rikers’ telephones.
     That claim was not preserved, though, because Johnson did not bring it up at trial.
     Pigott, in his concurring opinion, pointed to studies that indicate defendants not remanded stand a better chance of not being convicted or not receiving a prison sentence because they can better prepare a defense.
     “The detained suspect cannot make these same preparations,” he wrote.
     If prosecutors are listening in to conversations in which those preparations or strategies are discussed, “it is easy to see the potential for abuse,” Pigott added.
     Pigott said he would not cotton to the only apparent alternative for defendants: not to use the phones at all.
     “I cannot sanction that result,” he wrote. “Trial courts must be vigilant to protect the detainees’ constitutional rights, and consideration should be given to placing limitations on the prosecutor’s ability to obtain these recordings.”

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