OAKLAND, Calif. - The Alameda County Public Defender said he has discovered what could be a troubling pattern of "illegal recordings" of attorney-client conversations by certain sheriff's deputies, prompting prosecutors to immediately review similar cases to prevent any further abuse of this sacred privilege.
Brendon Woods on Monday said that privileged communications between lawyers and their clients must be protected. He was referring specifically to a case this spring where a sheriff's deputy was caught on his own body camera video talking to a lieutenant about recording a conversation between a juvenile charged with attempted robbery and his public defender.
Woods filed a legal motion asking a judge to forbid sheriff's deputies from taping privileged conversations, calling the practice intolerable" and an "outrageous" violation of due process. A hearing is scheduled for Friday.
“My first reaction was this can’t be happening; it’s illegal,” Woods said.
Secretly recording a conversation between a person in custody and the person’s attorney is a felony under California law, with a maximum of three years in prison.
Woods' claims are bolstered by body camera footage, first obtained by the San Francisco Chronicle, showing a sheriff's sergeant schooling a lieutenant on how to get around the sacred attorney-client privilege, telling him, inaccurately, that it's OK to record such conversations as long as it's not used in court.
“That whole conversation in and of itself is extremely troubling and concerning,” Woods said.
On Tuesday morning, KTVU obtained the video from the public defender's office.
The body-camera video was recorded March 15 at the Eden Township Substation in San Leandro, from the point of view of Sgt. James Russell, who has worked for the Sheriff’s Office for more than 20 years, according to his LinkedIn profile. Attempts to reach him were not successful. The deputies' union referred calls to Russell's attorney. A call to the Mastagni law firm in Sacramento was also not immediately returned on Tuesday.
In the video, Lt. Timothy Schellenberg asks him whether it is indeed OK to record an attorney-client conversation, and Russell is heard answering with a little laugh: "It's not admissible, but I record it. What if he decides to molest him in there? Then we're on the hook."
"How is that not privileged information?" the lieutenant asks.
"Well, it is, but like it just doesn’t get admissible,” Russell explains, inaccurately, referring to evidence that can be admitted into criminal court proceedings in front of a jury. “Like, when we record it, it’s just not admissible. We don’t have to record the phone call ...”
Later in the conversation, the lieutenant asks what happens if investigators listening to a recording hear a suspect admit to something that aids an investigation. Evidence obtained by police illegally typically isn’t admissible in court.
Schellenberg suggests a scenario where this could occur, like finding a gun in a backyard. Russell responds that the evidence would probably be deemed “inevitable discovery" and that the recording would simply need to be edited.
In a legal motion, Woods said this part of the conversation is the most "troubling exchange" as the two deputies discussed using "attorney-client conversations as evidence gathering tool."
Later on in the video, Russell does add that he has "not yet listened to any of the recordings."
Woods added in his motion that his office on June 30 asked the sheriff to stop recording these conversations, but has not heard back.
Alameda County Sheriff's Sgt. Ray Kelly told KTVU on Tuesday that his boss, Sheriff Gregory Ahern, is aware of the footage and is “taking this very seriously.”
Kelly said department policy clearly covers issues of attorney-client privilege and that his office is conducting a review of "how and why" this occurred. Kelly said that the recording microphone at this particular police substation should have definitely been stopped as soon as the attorney walked in.
"Attorney/client privilege is not a new concept to law enforcement," Kelly said. "We cover that from Day One at the police academy and continue throughout our careers."
This type of situation likely doesn't occur with adult inmates held in jail or defendants in court, Kelly said, because there are private attorney-client rooms at those places with no recording devices allowed. Clear signs also mark the privacy mandated for such conversations.
“What people don’t realize is when that body camera was turned off, the lieutenant took immediate action to address that issue and immediately stopped the recording,” Kelly said.
As a result of this situation coming to light, Kelly said the sheriff is looking into creating such a room at the various substations.
Alameda County @brendonwoodspd highlights what he says is the most "troubling exchange" as two deputies discuss using attorney-client conversations as evidence gathering tool." https://t.co/Yk7qTfBAgP pic.twitter.com/KyEpkytyZL— Lisa Fernandez (@ljfernandez) August 21, 2018
As for what might happen to this particular deputy in terms of discipline, Kelly said he couldn't speak to that because it is a personnel matter.
Teresa Drenick, a spokeswoman for the District Attorney's Office, told KTVU via email on Tuesday that when the office learned the sergeant had recorded the conversation, "which is privileged communication, we immediately dismissed the case."
She added that prosecutors have "pulled all juvenile cases, whether charged or uncharged," for review, which have been submitted by the sheriff's office since the start of this year and that the review of the "matter is ongoing."
District Attorney Nancy O’Malley said prosecutors have pulled a couple of dozen cases and she plans to come to a decision about potential criminal conduct within in the next few weeks.
“We’re of course looking at everything to make sure that this incredibly important constitutional right that an individual has, to have confidential communication with his or her lawyer, is protected and upheld,” O’Malley said.
On Jan. 1, a new law took effect requiring crime suspects younger than 15 to consult with an attorney, whether they ask for one or not, before speaking with police.
"Upholding the Constitution is the highest priority of this Office, including protecting the attorney/client privilege," Drenick wrote.
KTVU reporter Elissa Harrington and Cristina Rendon contributed to this report.