New Orleans records calls between inmates and their attorneys, and the city is making no apologies for it. These recordings are available to law enforcement and prosecutors alike. That means inmates can’t have an open conversation with an attorney, a potential violation of the right to counsel; if they do, whatever they say can be used against them, a violation of attorney-client privilege.
The only ways a NOLA inmate can ensure privacy are by registering g an attorney’s landline, a burdensome process involving an affidavit; or through in-person meetings. Realistically, overburdened defense attorneys can’t wait by a landline or drive out to speak with every client in person.
What New Orleans is doing is not normal.
Looking to Supreme Court precedent, the validity of policies affecting inmates’ access to attorneys hinges on “reasonable,” per this passage from 1974’s Procunier v. Martinez:
[I]nmates must have a reasonable opportunity to seek and receive the assistance of attorneys. Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid.
It’s hard to see how a practice that prevents clients from having private conversations to convey information, develop strategy, and discuss plea bargains could be consistent with the mandate of a “reasonable opportunity to seek and receive the assistance of attorneys.”
In Black v. United States, a 1966 case in which prosecutors were given notes about attorney-client conversations recorded in the course of another investigation, the Supreme Court ordered a new trial.
[J]ustice requires that a new trial be held so as to afford the petitioner an opportunity to protect himself from the use of evidence that might be otherwise inadmissible.
As Court Watch NOLA observes, “Historically speaking, inmates have enjoyed the attorney-client privilege in conjunction with in-person attorney visits, letters and phone calls.” The only exception to attorney-client privilege lies with discussion of a future or ongoing criminal act. But New Orleans officials are sending along the whole call, without a filter like a taint team or a special master to excise portions protected by privilege.
New Orleans isn’t the only offender. Court Watch NOLA surveyed 47 cities and found calls between inmates and lawyers are also recorded in Salt Lake City; Minneapolis; Tulsa, Oklahoma; Boston; Frankfort, Kentucky; Columbia, South Carolina; Annapolis, Maryland; and Concord, New Hampshire.
Going by precedent, it’s not likely these practices will stand up under sustained legal challenge. In the meantime, however, they’re subverting the constitutional rights of hundreds—or even thousands—of inmates.