‘Do Not Record’

For those embroiled in the criminal legal system, this may come as no surprise: In January 2018, defense attorney Joel Garson discovered that his client’s phone calls from the Orange County jail had been recorded and listened to by law enforcement.

At the time of the recordings, Garson’s client, Joshua Waring, was pro per, or representing himself, and the trial court had ordered that his calls not be monitored. Garson alerted the court and hearings were held, which led to another discovery—recording went far beyond Waring’s case.

“We learned that it wasn’t just pro per calls that were tape recorded,” Garson told The Appeal. “We found out there were thousands of phone calls to attorneys that were also recorded.”

More than a year later, Orange County defense attorneys are still trying to piece together the scope and potential impact of the jailhouse recordings. Prisoners’ phone calls with their attorneys are understood to be protected by attorney-client privilege, and, in California, it is a felony to listen to or record an incarcerated person’s calls with an attorney. Just this month, assistant public defenders Scott Sanders and Sara Ross filed motions in separate cases with hopes of compelling the courts to help illuminate the breadth of the misconduct.

Ross and Sanders are asking the Orange County Superior Court to help determine how many calls were recorded, whose calls were listened to by law enforcement, and what calls were turned over to the district attorney’s office.

“Whether the cover up is worse than the crime is yet to be determined because a complete understanding of what has taken place remains obscured by the persistent nature of the concealment,” wrote Sanders in his motion.

Whether the cover up is worse than the crime is yet to be determined.

Scott Sanders Assistant Public Defender, Orange County

In January 2015, Global Tel Link Corporation (GTL), Orange County jail’s phone provider, switched over to a new platform called Inmate Call Manager (ICMv). GTL maintained a “do not record” list and a “private” list of numbers that were not to be recorded. It’s unclear why two lists existed, according to Ross’s motion.

Three years later, after the scandal broke, GTL explained that when the system was updated from LazerPhone to ICMv, phone numbers from the “do not record” list were not properly uploaded. A total of 1,079 calls were recorded from 2015 to 2018 as a result of this “technical error,” according to a letter from GTL sent last July to the Orange County Sheriff’s Department. Almost 60 of those recordings were “accessed” by sheriff’s department staff and GTL “for investigative or technical purposes,” according to the letter. Ross’s motion defines the calls “accessed” as those that were “downloaded, listened to, copied, or otherwise distributed to law enforcement, or the prosecution.”

But soon after that letter was sent, it appeared that GTL’s own story began to change. In August, at Waring’s hearing, George McNitt, vice president of technical services at GTL and co-creator of ICMv, said human error was to blame. And in October, GTL revised the number of calls that were recorded and accessed. According to a declaration by McNitt, senior director of services at GTL, 4,356 calls were recorded, and 227 calls were “accessed” more than 300 times.

“The vast majority of defense lawyers had absolutely no idea these lists existed or that their calls were being recorded,” Ross wrote in her motion to the court.

In response to a series of questions sent by The Appeal, GTL spokesperson James Lee emailed the following statement: “We are unable to provide any specific response to the motion in question because of the ongoing nature of the special master and court proceedings which we are fully cooperating with. We have previously provided publicly-available testimony and declarations fully addressing questions raised so far during the proceedings and will continue to cooperate. As always we continue our commitment to our customers and to inmates and their friends and families.”

The Orange County Superior Court has appointed special masters to determine whose calls were recorded and to notify the affected attorneys. In her motion, Ross said this process has been, “slow and arduous, with precious few notifications arriving at defense counsel offices.”

The Appeal requested from GTL a list of jurisdictions where ICMv is in use and where the conversion from LazerPhone to ICMv occurred. Lee responded via email that he could not provide that information, noting that it is not part of the public court record, and is “proprietary and competitive.”

The sheriff’s department has placed responsibility for the recordings on GTL and denied any wrongdoing. “The facts show that this is an error by GTL, an error that they are continually unable to fully disclose or explain,” then-Sheriff Sandra Hutchens said in a statement released in November. “We anticipate this will be exploited by some to perpetuate an anti-law enforcement narrative. We are confident that those who look at this situation objectively will recognize an error by a contractor does not constitute a conspiracy by law enforcement. To imply otherwise ignores the truth.”

Hutchens’s statement does not address GTL’s claim that members of her department accessed the recorded calls, and she asserts that the office did not learn that calls had been recorded until June 2018. In an email to The Appeal, Carrie Braun, public information officer for the Orange County Sheriff’s Department, wrote that the department is limiting its comments to the November press release, “as this case is being handled by the Special Master appointed by the court.”

I want to know what the full scope of this misconduct was—how many calls were actually recorded, who accessed those calls, who knew what when, and who was responsible for the lack of action.

Brendan Hamme Staff Attorney, ACLU of Southern California

The potential culpability of the sheriff’s department, the district attorney’s office, and GTL demand further scrutiny, according to advocates. “I want to know what the full scope of this misconduct was—how many calls were actually recorded, who accessed those calls, who knew what when, and who was responsible for the lack of action within both offices in a meaningful way before the scandal broke,” said Brendan Hamme, a staff attorney with the ACLU of Southern California. “The public still has no idea the full scope of this conduct by both agencies.”

GTL has said that numbers on the “private” list were properly uploaded, and that only numbers on the “do not record” list were mistakenly recorded, Ross wrote in her motion. Phone numbers for the Orange County public defender and alternate public defender, for instance, were listed on both the “do not record” and “private” lists, according to Ross. However, according to GTL, Ross wrote in her motion, 11 calls to the public defender’s office and the alternate defender’s office were recorded between 2015 and 2018. Not only does this conflict with GTL’s assurances about the “private” list, but it does not reflect the high volume of calls received by the public defender’s office, according to Ross.

“There should have been thousands or even hundreds of thousands of recordings,” wrote Ross. “The presence of only 7 Public Defender phone calls and 4 Alternate Defender phone calls thus demonstrates that GTL’s information is false and inaccurate.”

The extent of the district attorney’s involvement is also not yet known, according to advocates. Last December, deputy district attorney Denise Hernandez testified during Waring’s case that prosecutors had been in possession of recordings between attorneys and their clients in at least eight criminal cases.

“The duty of the prosecutor is to seek justice, not convictions,” said Somil Trivedi, a senior staff attorney with the ACLU. “They should have gone directly to the chief judge or done whatever they had to do to end the program.”

This duty was taken seriously, according to Orange County senior deputy district attorney Cynthia Nichols. In April of 2016, when Nichols was provided a recording of a defendant’s conversation with his attorney by an investigator with the DA’s office, she sealed the disc, ordered the investigator to generate a report about what had occurred, and notified defense counsel, the public defender’s office, the sheriff’s department, and her supervisor.

In response to a series of questions from The Appeal, Kimberly Edds, public information officer for the district attorney’s office, emailed, “This is an active case. We will respond as part of the official court proceedings.”

“The DA and the sheriff are partners in law enforcement and we know that the DA received some of these calls,” said Trivedi. “There’s no way that they can claim ignorance on this.”

Years before the scandal broke, GTL should have known there was a risk that privileged calls were being recorded. In February 2015—just one month after the Orange County phone system was updated to ICMv—authorities in Charlotte County, Florida, notified GTL that privileged calls had been recorded after the same update from LazerPhone to ICMv.

In response, GTL’s McNitt sent a letter dated March 16, 2015, to the Charlotte County sheriff’s office explaining that during the conversion to ICMv in July 2014, numbers on the “do not record” list were not transferred, leading to the improper recording of 246 calls. McNitt testified at the Waring hearing held last August that the “do not record” list had also not been properly uploaded in Pinellas County, Florida, after its update to ICMv. However, GTL never contacted Orange County or any other jurisdiction to alert them about what had occurred in Florida, according to McNitt’s testimony.

“If law enforcement wished to have access to privileged calls and were willing to keep it to themselves, as they did in Orange County, that was perfectly acceptable to GTL,” wrote Sanders in his motion. “The company was undisturbed by its role in violating the rights of inmates who were oblivious to what was occurring.”

The problem may still exist in other jurisdictions that converted from LazerPhone to GTL’s ICMv platform or use ICMv, warned Sanders in his motion. GTL, along with its primary competitor Securus Technologies, dominate the billion-dollar prison telephone services industry. GTL’s products, which include phone, messaging, and video calls, service 2,400 facilities across all 50 states, Washington, D.C., and Puerto Rico, according to its website. More than 80 percent of U.S. prisoners use their products, GTL says.

Disclosure to clients who use ICMv, Sanders charged, would have threatened GTL’s bottom line. “The price of transparency and accountability was simply too steep—even though the cost was the right of incarcerated defendants to have confidential, unrecorded communications with their counsel,” wrote Sanders. “So instead, GTL buried its problem. But it came back to life in Orange County.”

Advocates fear there are efforts to bury the problem once more. The Orange County Grand Jury published an exonerating report on May 31, finding, “All involved parties handled this situation professionally, with transparency and with good intentions. …To the [Orange County Sheriff’s Department’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 report concedes some wrongdoing. “During evaluation of the problem, it was determined that several of the recorded calls had been accessed and information provided to the Orange County District Attorney.” Despite this finding, the report concluded, “There was no evidence that recorded phone calls were systematically provided to the DA and representatives of the departments involved were forthcoming and responsive.”

The grand jury’s report should be taken with “a grain of salt,” said the ACLU’s Trivedi, who noted that the grand jury has issued questionable conclusions before. In 2017, the grand jury also exculpated the DA’s office and the sheriff’s department in the decades-long program in the Orange County jails that used informants to elicit confessions from “high profile” suspects.

“I think it’s woefully deficient in its scope,” Trivedi said of the grand jury’s report on the jail recordings. “It gives far too much attention to things like professionalism on the part of the Orange County sheriff in addressing the scandal once it came to light as opposed to the real world ramifications for criminal defendants, for defense attorneys, for the justice system as a whole.”

Garson, who was interviewed by the grand jury, also criticized the report, calling it a “whitewash.” “The sheriff’s department knew that these calls were being improperly taped and they didn’t do anything about it,” said Garson. “Time after time, thousands of calls. …That’s what really is to me the most upsetting thing.”

A defense attorney in Orange County for 30 years, Garson said the cynical part of him wasn’t shocked when he learned about the recordings. “They can be listening anyhow, anywhere they want to, but somehow we have to talk to our clients,” he said. “We just hope that the sheriff’s department is following the law.”