Calls from Maricopa County jail taped illegally
Glitches blamed for years of recording lawyers, clients

By Dennis Wagner
The Arizona Republic
Nov. 29, 2002

A judicial investigation has found that legal calls made by Maricopa County jail inmates were illegally tape-recorded on and off for the past four years.

However, judicial investigator Mark Cardwell blames the blatant breach of attorney-client privilege on human bumbling and computer glitches rather than a law enforcement conspiracy.

"I have found nothing in my investigation to indicate that improper recording has occurred for any reason other than system failures or personnel failures," concluded Cardwell, a computer phone system analyst. "It has happened for a variety of reasons and is likely to occur again unless steps are taken to prevent it."

At issue is whether the government violated inmates' right to confer privately with attorneys and, if so, how to remedy the problem.

Should some criminal charges be thrown out, as happened in a similar case four years ago? Or did the recording of calls amount to harmless technical glitches?

The controversy erupted in April after county officials admitted that prisoner conversations with at least 10 defense attorneys were improperly taped. Presiding Superior Court Judge Collin Campbell assigned special master Donald Daughton to investigate. Daughton recruited Cardwell to study the computerized phone system, which handles millions of calls each year from more than 7,000 prisoners in county jails.

On Monday, after reviewing Cardwell's report, Daughton filed court papers saying that there is no evidence of willful misconduct and no point in further investigation.

But some defense lawyers claim that the probe was superficial and that jail officials will be able to continue a pattern of recording legal calls.

"The problem is, you've got the fox guarding the henhouse," said attorney Carmen Fischer, whose conversation with an inmate was recorded. " . . . It's like they're sitting on this. And we want something done about it."

"It creates this chilling effect on your ability to talk with your client," said attorney Phil Noland, who intends to ask for a more-thorough inquiry.

A number of the recorded legal calls involved members of New Eme, a prison gang notorious for threats against witnesses and law enforcement. Noland said jail records make it clear that detectives assigned to the New Eme case are regular listeners to inmate phone recordings. Yet Daughton did not check to see which inmate-attorney calls were recorded or which investigators checked out tapes.

Police and jail officials deny any unauthorized eavesdropping. Jack MacIntyre, a spokesman for Sheriff Joe Arpaio, said it was his office that requested the special master's investigation.

"We have absolutely the cleanest hands around," he said.

Clint Davis, a Phoenix police detective assigned to New Eme, said, "I can tell you that I've never listened to a jail call that involved a lawyer. And I don't know of any officer who has. . . . They (gangsters) are not worth risking a career over."

Millions of phone calls are made each year from five county jails. The phone system is programmed to record all but those made to defense attorneys, whose 16,000 office numbers are stored in a database.

According to Cardwell's report, breakdowns in the screening system are far more widespread than sheriff's officials admitted. He divided blame among sheriff's employees, Qwest phone company and a system contractor known as T-Netix.

Cardwell found that legal calls were improperly taped at least seven times since 1998, sometimes by the thousands. During a one-month period in 1999, every inmate-attorney conversation was taped and lawyers received no recorded warning. A computer glitch from early 2001 into this year also caused wholesale recording of legal calls.

Based on the research, Daughton said that "there is no evidence that any inmate call to his or her attorney was specifically targeted for recording."

But defense attorneys say there is circumstantial evidence against investigators, as well as motive in their animosity toward New Eme.

Some law enforcement agents have complained openly that New Eme uses defense lawyers as couriers or collaborators in illegal schemes. In at least one case, detectives obtained court approval to wiretap conversations between inmates and a Phoenix defense attorney.

Four years ago, officials say, New Eme sponsored a failed murder plot against now former prison Director Terry Stewart. In 2000, New Eme's top five members were arrested, along with affiliates Luis and Felipe Cisneros. Two months ago, many of the same individuals were indicted by a federal grand jury in connection with the murder of a prison guard.

Noland and Fischer became suspicious of jail phones after taking calls from inmate Richard Trujillo, 28, a purported New Eme member. Noland said each call was preceded by a warning that the conversation would be recorded, but sheriff's officials told him to disregard the message because it did not apply to legal calls.

After repeated inquiries, the Sheriff's Office acknowledged recording at least a dozen conversations between Trujillo and his lawyers.

The ensuing controversy delayed some felony cases while judges looked for evidence and legal answers. This week, efforts to overturn Trujillo's federal conviction failed because defense lawyers had no proof that detectives listened to client-attorney conversations.

Other inmates, including convicted murderer James A. "Jaime" Sanchez, have complained that investigators routinely come by their jail cells and spout information that was shared only with legal counsel. In a letter to the court, Sanchez says he eventually made false statements to his lawyer as a test and "some of this erroneous information was actually used at my trial."

Critics are particularly suspicious of jail phones because of a case four years ago. A supposed military police officer named David Pecard was arrested after being exposed as an impostor and con man. Pecard, who had befriended Arpaio, became an embarrassment. While he awaited trial, jail officials monitored his legal phone calls and mail. The violations were so egregious that charges were dismissed, though the state Court of Appeals later ordered a new trial.