The Orange County Grand Jury Friday released a report concluding that no criminal cases have been jeopardized by at least three years of improper recording of jail inmate calls to attorneys but recommended a variety of reforms that could prevent further issues.
The grand jury report drew criticism from an attorney involved in litigation seeking to determine the damage the improperly recorded calls have done to pending cases, many of which involve murders and other violent crimes.
“I’m disappointed by the report because I think it’s incomplete and, frankly, I think it’s too soon for them to put out a report because we don’t have all of the information yet,” Sara Ross of the Orange County Public Defender’s Office said.
“We know that eight different (prosecutors) on 10 different cases had these phone calls, so how can you make a finding no one’s doing anything bad? We just don’t know yet,” Ross said. “They seem to gloss over a lot of important points. It’s still a mess and I’m disappointed they waded in without having all of the information to make valid conclusions.”
The report does not make any mention of an Orange County deputy district attorney suspended from work when recorded calls were found on his computer.
Ross has asked Orange County Superior Court Judge Gregg Prickett, who is overseeing an effort by special masters to comb through the recorded calls to determine if the rights of the defendants were violated, nine times to grant an evidentiary hearing, and he has rejected her each time, explaining it was too early to do so.
So far, investigators have uncovered 29,456 incomplete calls made by inmates to attorneys, 4,356 calls that connected with the lawyers and 347 of them have been accessed by authorities.
The problem stems from a switch to a new software system by the independent contractor Global Tel Link in January 2015, which dropped most of the attorneys on a “do not record” list. The problem wasn’t uncovered until Joel Garson, who represents a “Real Housewives of Orange County” son charged with attempted murder, discovered them about three years later and filed a motion to dismiss the case against his client, which was rejected and is now being appealed.
The grand jury credited Orange County Sheriff’s Department officials for quickly addressing the problem when the contractor acknowledged the error in July of last year.
The grand jury “found that all involved parties handled this situation professionally, with transparency and with good intentions,” the report reads. “There was no evidence that recorded phone calls were systematically provided to the DA and representatives of the departments involved were forthcoming and responsive. This is a complicated issue and, to the OCSD’s and the county’s credit, they are tackling it head-on and may easily become leaders in the state and the United States in finding the most desirable solution for providing legally privileged communications to inmates.”
The grand jury found fault with “minimal centralized technical oversight of the inmate phone recording system” prior to the problem surfacing in July of last year.
The Grand Jury also found that deputies were not utilizing all of the features available to them through the new system and did not have an “on-site systems engineer” to “resolve technical issues in a timely manner.”
Inmates were also not being instructed about their attorney-client privilege rights. And attorneys, despite signs in the jail warning that calls could be recorded, assumed their calls would not be recorded because it is unconstitutional. Deputies may record and monitor calls from the jail that are not to their attorneys.
Sheriff Don Barnes issued this statement about the report:
“I’m heartened the report reinforced there was no malicious wrongdoing or evidence that any defendant’s right to a fair trial were adversely affected by GTL’s error. As the report notes, the department has handled this indent responsibly professionally. We continue to take steps necessary to ensure that the inmate phone system both helps us manage jail security and protects constitutional rights.
“OCSD has taken multiple steps to ensure attorney-client privileged phone calls will not be recorded or listened to. We have enhanced oversight within the Custody Intelligence Unit and created a formalized and publicized process for attorneys and public defenders to submit their phone numbers for inclusion on the “do not record” list.
Attorneys seeking additional information on this process can find it on the homepage of ocsd.org. In addition, a new phone prompt requires users to acknowledge the call is being recorded by pushing a button before the call can proceed.
“Previously recorded calls identified by GTL are not accessible by Sheriff’s personnel. Additionally, OCSD has directed staff that any previously downloaded recordings are not to be listened to.
“We are in the process of developing a Request For Proposal for an inmate telephone system that will have enhanced programming and security. This system will be integrated into the broader jail reorganization designed to meet the needs of the current inmate population and ensure each inmate has the opportunity to rehabilitate and reenter society.
“We will respond to the Grand Jury’s individual recommendations prior to the July 30, 2019 deadline.”
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