SANTA ANA, Calif. (CN) — Criminal defense lawyers in Orange County, California, have been stunned to learn in recent weeks that many of their supposedly privileged phone calls with jailed clients were improperly recorded.
According to Orange County Sheriff Sandra Hutchens’ office, from January 2015 through mid-July this year, 1,079 phone calls were automatically recorded by county jails’ phone system, although the calls had been placed to attorney phone numbers that should have been flagged as private and not recorded.
The revelation came as part of the attempted-murder case against Josh Waring, the son of former “Real Housewives of Orange County” star Lauri Peterson. Waring is accused of shooting Daniel Lopez, 35. In addition to several calls Waring made, other recorded calls were between an accused triple-murderer and his attorney.
In a letter to Hutchens in late July, Darren Wallace, executive vice president of phone-system contractor Global Tel Link Corp., said that of the 1,079 recorded calls, law enforcement officers and others listened to, copied or downloaded 54 recordings a total of 87 times.
Testifying in superior court Thursday, Wallace and other Tel Link executives revealed that jail systems on the other side of the country had the same problem about two years ago.
Wallace and George McNitt, Tel Link’s vice president for technical services, told Waring’s attorney Joel Garson that calls to attorneys were also recorded improperly in Pinellas and Charlotte counties in Florida.
The sheriff’s departments in those counties did not return calls late Thursday.
Waring faces three counts of attempted murder and other felony and misdemeanor charges stemming from a shooting at a sober-living home in June 2016. He allegedly quarreled with residents of the home, went home and got a gun and returned and shot Lopez, who was seriously wounded but survived.
During the Thursday hearing on a motion to dismiss, Garson asked both executives whether Tel Link had informed the company’s many other customers about the problem.
“We have not,” McNitt said.
Wallace responded: “Where this has occurred, we have worked with the appropriate agencies.” Now that the problem has arisen in Orange County, the company is beginning to let other customers know, he said. “It’s in process,” Wallace said.
Global Tel Link, based in Reston, Va., provides phone, visitation, jail kiosk and other services in “the inmate space” to about 2,000 agencies across the country, according to Wallace.
McNitt blamed Orange County’s trouble on “human error,” when Tel Link technicians moved the county jails’ inmate phones to a new software system in January 2015. Some 1,300 numbers that had been marked “do not record” in the old system were not transferred to the new system.
Only about 45 numbers on a “private” list in the old system made the move, he said.
The technician who made the error left Global about a year ago, McNitt said.
In a brief interview, Garson said he discovered the problem in January — a day before Waring’s trial was set to begin — when he received a report from a police investigator discussing access to recordings of Waring’s jail phone calls and mail.
Garson said he immediately filed a motion asking Superior Court Judge Jonathan Fish to dismiss the charges against Waring due to “outrageous government conduct.”
Then he dug into the issue more deeply. He discovered that some of Waring’s calls had been recorded in violation of a court order when Waring was represented by the public defender’s office, and when he was representing himself.
This month he discovered that more than 30 calls from accused triple-murderer Shazer Fernando Limas to his lawyer were recorded, and some were accessed by law enforcement.
“Been doing this for six months now,” Garson said.
Speaking to reporters, Garson said that defendants’ right to communicate privately with their attorneys is vital to the criminal justice system.
“This has been going on for three years,” he added. “Law enforcement had a duty” to bring it to the bar’s attention.
On Monday, the county public defender’s office formally joined the issue, asking Superior Court Judge Gregg Prickett to appoint a special master to review the 1,079 recordings and to prohibit the district attorney, sheriff and county counsel offices from listening to the recordings.
Sheriff Hutchens addressed the recordings in a letter in late July, saying she was “deeply disappointed” by the problem and “concerned about the serious consequences it may bring.”
“Although each call was prefaced with a warning that calls were ‘subject to monitoring and recording,’ we know that these calls never should have been recorded by [Tel Link],” she wrote.
Judge Fish will resume the hearing on Garson’s motion to dismiss on Sept. 25 with more testimony from McNitt, and others.