Disturbing news from The Intercept regarding a hack of Securus Corporation. Securus is the largest provider of phone services to the nation's prison population and records every call made by a prisoner in the facility. Most of these calls are to family members and you can be assured that even laziest, hack prosecutor will pull a defendant's jail calls before trial and have his investigator listen to them. That's disconcerting enough, however, The Intercept notes that this breach may be the largest violation of attorney client-privilege ever.
This may be the most massive breach of the attorney-client privilege in modern U.S. history, and that’s certainly something to be concerned about,” said David Fathi, director of the ACLU’s National Prison Project. “A lot of prisoner rights are limited because of their conviction and incarceration, but their protection by the attorney-client privilege is not.”
I generally try to avoid talking to my clients on the jail phone because of this issue. On the rare times, that I do, I often start the conversation off by saying "This call is covered by attorney-client privilege. Everything discussed on this call is confidential. Please stop all recording. If you cannot manually stop the recording, anyone who listens to this conversation is in violation of state law. Please turn off the recording now." I have no idea whether that works or not but at least it provides fair warning to the law enforcement that the conversation is not to be listened to.
As a precaution, I rarely try to address the substantive facts of my client's case on the phone. I stick with public information such as court dates, filings, responses to pleadings. Mostly, I discuss procedure and very general Criminal :Law 101 Procedure at that. I never discuss defenses, prospective plea offers, arguments for bond or how I plan to get the client out of jail. All of that is done and should be done in person.
So, in light of this, what are the Dos and Don'ts when you get the 3 am phone call from your son or mother or friend from Jefferson Parish Correctional Center, OPP or any one of the other hellhole local jails in the Greater New Orleans Area.
1. Do Get The Name and Correct Date of Birth Your Client/Friend/Loved One Is Booked Under.
As a criminal defense lawyer, I have access to online case information in Jefferson Parish, New Orleans, St. Tammany Parish and St. Bernard. In other parishes, I can usually call the jail and get the necessary information. However, if the defendant is booked under a different name such as his middle name or his Christian name or her maiden name, I am going to have a hard time locating them. Same goes for date of birth. I can't tell you how many times I can't find a potential client in the system because their date of birth has numbers that are transposed.
2. Do Ask "What Parish Jail Are You In?"
You would be amazed at how often I get calls from people and they don't know what parish the client was arrested in. I can usually find them, but it does make my job easier to know where they are located.
3. Don't Ask "What Happened?"
It is natural human curiosity to want to know how someone's life choices, especially your child's, led to them to wind up calling you from jail at 3 in the morning. Believe me, I know better and I have to bite my tongue sometimes when on a jail call. There will be plenty of time for reprisals later. Right now, as the person receiving a jail call, your only thought should be "What needs to happen to get my friend/loved one/client out of jail?".
As noted the call is being recorded. Any discussion of the underlying facts of the case, can and will be used against your loved one in a future prosecution. No matter how innocuous the description of what led to the arrest may be.
4. Do Ask "When Do They Go Before The Judge?"
Bond setting is tricky. And the State and even the Public Defenders don't like having private criminal defense lawyers at bond settings. So while, initial appearances aren't a state secret, they aren't well publicized either and depending on the parish, they can occur at odd times. Most times, once your loved one is booked, they will have that information. It is important to ask that question.
5. Do Caution Them Not To Speak About Their Case To Anyone But Their Attorney.
Most clear headed people know to shut up when the police have them under arrest. However, many clients think they can talk themselves out of their situation. So, they explain away. All of this can be used against them in court. This goes for speaking to other inmates as well. Inmates can quickly become jailhouse snitches if it is to their benefit.
6. Don't Leave Your Loved One in Jail For Any Longer Than They Need To Be There.
On most offenses, an experienced criminal defense attorney can the client out of jail quickly. But sometimes I hear "Leave him in jail to teach him a lesson." While I do think learning life lesson is important, the Louisiana parish jail system is not going to impart any significant life lessons. I often tell parents "I think it is admirable that you want your son or daughter to deal with the consequences of their actions, however that is a lesson you can teach them on your own, once they are out of jail." So in light of that...
7. Do Hire A Criminal Defense Attorney As Soon As Possible.
After defending somewhere north of 600 criminal cases over the last 6 years, I can assure you that the earlier I am involved in the process, the better results I can obtain for the client. There are simply more opportunities to shape the facts, posture the case with prosecutors and get out in front of any almost certainly negative media coverage. If you need to talk to an experienced. criminal defense attorney in the New Orleans area, do not hesitate to call me at 504-304-2335. New Orleans Magazine has recognized me as one of the top criminal defense lawyers in New Orleans.