Some civil rights advocates called Friday for an independent criminal investigation into the improper recording of 1,079 telephone calls between Orange County jail inmates and their attorneys during the past three years.
The recordings — dozens of which were accessed by law enforcement — appeared to be a felony violation of the attorney-client privilege under Penal Code Section 636.
“At the very least, you would think it’s something for the grand jury or the (state) attorney general,” defense attorney David Dworakowski said. “I find it to be outrageous. (Those calls) are not to be listened to by anyone.”
The state and federal Department of Justices already are investigating Orange County authorities for another scandal, the misuse of jailhouse informants to obtain convictions.
Sheriff Sandra Hutchens noted in a statement that all inmate telephone calls include a prompt that says the conversations are subject to being monitored or recorded. By ignoring that prompt, defense lawyers may have given tacit permission to record the conversations, said Lawrence Rosenthal, a professor at Fowler School of Law at Chapman University.
“I think there’s a serious question of whether the attorneys are being irresponsible. If they get the prompt, why do they ignore it? Why do they trust the Sheriff’s Department” not to record it?” said Rosenthal, a former prosecutor. “One of the things I’m puzzled about in Orange County, there seems to be a very cozy relationship between the defense bar and the prosecution.
“There’s at least a reasonable doubt,” he said. “I wouldn’t prosecute it.”
Dworakowski disagreed.
The prompt doesn’t apply to clients talking to their attorneys, he said. “These conversations need to be hands off.”
The Sheriff’s Department released a statement Friday that it is still trying to determine what to do next.
“We are working with county counsel, the District Attorney’s Office and the Public Defender’s Office to determine the full scope of the issue and how we move forward,” said spokeswoman Carrie Braun.
District attorney’s spokeswoman Michelle Van Der Linden said: “The OCDA is still in the process of determining what took place and who was involved. After we are able to make this determination, we will take any and all legally and ethically appropriate actions.”
The telephone gaffe was revealed in the attempted murder case of Joshua Waring, the son of former “Real Housewives of Orange County” cast member Lauri Peterson. Waring’s telephone conversations had been taped while he was representing himself.
Further investigation led to the discovery that the sheriff’s telephone contractor maintains a list of 1,300 attorneys who are not to be recorded. That list fell to 72 attorneys after the carrier, GTL Corp, made a software upgrade in January 2015.
Of the 1,079 attorney-client calls that were recorded, 58 cases were accessed 87 times by law enforcement. said Waring’s attorney, Joel Garson. Garson said some of those recordings were passed to the Costa Mesa Police Department and other law enforcement agencies.
GTL said in a July 27 letter to Hutchens that the problem was fixed in June, when she said she first heard about it.
