‘DO NOT RECORD’

By Elizabeth Weill-Greenberg, The appeal

Photo illustration by Elizabeth Brown. Photo from Getty Images.

Photo illustration by Elizabeth Brown. Photo from Getty Images.

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.

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.

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