Criminal Law Blog
September 12, 2007
This is why I warn clients who call me from the jail: “don’t say anything you don’t want recorded and used against you.”
There was a capital murder case in Williamson County I handled once. The prosecutor gave me a set of CDs that contained recordings of my client talking about her case, what she did, and about me. “Don’t worry,” the prosecutor said. “Your client likes you and says you work hard.” Now, there was nothing illegal or unethical about the jail recording those conversations. There are signs in the jail saying that the calls are subject to being recorded.
Now comes a very different story from Hunt County in which the jail not only recorded the conversation between a client and his lawyer, but then turned that recording over to the prosecutor. Here is a link to the Dallas Morning News Story.
This is a blatant violation of the defendant’s 6th amendment rights. I’ve had this sort of thing happen to me before, when I was handling a different capital murder case in Travis County. I found a letter from me to my client in the prosecutor’s file! I prepared a motion to dismiss the case as a result.
Justice Scalia says that sometimes the way to deal with violations of a defendant’s rights isn’t necessarily to exclude evidence, but to sue the police officer. Here’s the link to his opinion in Hudson v. Michigan.
My language can be a wee bit earthy sometimes, so I won’t write my initial reaction. Instead, I’ll just say that’s hogwash. You get the idea.