More than 1,000 inmate phone calls over a three-year period were wrongly recorded by sheriff’s deputies in violation of the defendants’ attorney-client privilege, it was revealed Wednesday in a court hearing involving an attempted murder case against the son of a former “Real Housewives of Orange County” cast member.
Joshua Waring’s attorney, Joel Garson, is attempting to have the case against his client dumped on grounds of outrageous governmental misconduct. Garson believes that as many as 50 cases involving defendants charged with serious crimes could be jeopardized by the breach.
In a letter to Orange County Sheriff Sandra Hutchens dated July 27, the contractor overseeing the jail phone system said an update in the system in January 2015 caused a “technical error” that led to 1,079 inmate phone calls being recorded.
“After conducting research, we have determined that the Sheriff’s Department staff, and in certain circumstances (Global Tel Link Corp.), for investigative or technical purposes, accessed 58 of those 1,079 recorded calls a total of 87 times,” wrote Darren Wallace, executive vice president of operations for GTL.
The company had a list of about 1,200 attorneys whose numbers were supposed to be blocked from recording, and after the software upgrade, that number dropped to 72, Garson said.
It’s not clear yet whether any of Waring’s calls were improperly taped and accessed, Garson said.
Messages left with the Orange County Sheriff’s Department and the Orange County District Attorney’s public relations department were not immediately returned.
The revelations would appear to come as a surprise to Senior Deputy District Attorney Cynthia Nichols, the prosecutor on the case, who on Monday questioned Greg Boston, who is in charge of inmate services for the county, on whether the data on the calls was turned over to prosecutors.
“Did the sheriff’s department take any steps to contact the attorneys whose phone numbers these are, or the defendants themselves that their conversations could have been recorded or were recorded?” Nichols asked Boston.
“We have not to my knowledge done that yet,” Boston replied.
“Are you going to do that?” she asked.
“Do you think it is important to perhaps to that as quickly as possible?” Nichols asked.
“Yes,” he responded.
Even more troubling, Garson told City News Service, is that recordings of some of the calls have been sent to other law enforcement agencies such as the Costa Mesa Police Department, which was the investigating agency on the Waring case.
Authorities generally only order recordings on inmate calls for defendants facing serious crimes such as murder and gang-related violence, Garson said.
Garson discovered the issue when a Costa Mesa police officer submitted a 40-page report summarizing Waring’s phone calls.
“We realized that some of the time periods (of the recorded calls) were when” Warning was representing himself without an attorney, Garson said. “The more we dug, the more we found out there were other calls. Not just his, but in general that were recorded that shouldn’t have been.”
Of the 1,079 improperly recorded calls, about half were to public defenders, Garson said.
“It shows that the sheriff’s department is listening to conversations that are of the upmost confidential in the legal system,” he said. “The attorney-client privilege is considered one of the most sacred privileges in criminal law… The police, if not the D.A., had a huge tactical advantage knowing what the defense is going to be.”
Prosecutors in February argued that Garson’s motion to dismiss charges should be denied because Waring did not invoke his privilege to private calls. They argued there is a boilerplate announcement letting inmates know the calls are being recorded.
Waring, 29, represented himself from Nov. 29 to Dec. 28, 2016.
Authorities are no longer recording calls to the attorneys, officials said.
Waring represented himself during a preliminary hearing in which he was ordered to stand trial in early December 2016. Garson later took over as Waring’s attorney and got the case dismissed, but prosecutors refiled it earlier this year, and after another preliminary hearing, Waring was again ordered to stand trial on three counts of attempted murder, with sentencing enhancement allegations of premeditation and deliberation and shooting a gun causing great bodily injury.
The son of Lauri Peterson, who was a “Real Housewives of Orange County” cast member from its debut in 2006 until 2008, is accused of shooting then-35-year-old Daniel Lopez outside a home in Costa Mesa on June 20, 2016. Two other people escaped injury in the drive-by attack.
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