[IMAGE CREDIT: iStock / Yanic Chauvin]
(This Article was First Published in LLN in February, 2011— Issue No. 6.)
To some it may simply seem to be common sense, while to others it may come as a complete surprise; nonetheless, talking on a jailhouse telephone is the functional equivalent of chatting using two tin cans tied by a string—one can held to your mouth, and the other held to the prosecutor’s ear. Today, that analogy can be modernized: One end of the telephone pressed to your mouth, and for all intents and purposes, the other end connected directly to a laptop sitting on the prosecutor’s desk. But what about “privacy,” you ask?
The fact of the matter is, when you check your shoes, belt, wallet, and other sundries at the local county jail, you also relinquish most of the cherished “privacy” rights you previously enjoyed. This includes the right not to have your telephone conversations monitored by the government, or essentially “seized.” Indeed, the Fourth Amendment’s right to privacy is measured by a two-part test: 1) the person must have a subjective expectation of privacy; and 2) that expectation must be one that society recognizes as reasonable. In line with the U.S. Supreme Court, the Florida Supreme Court has long recognized that a prisoner’s privacy interest is severely limited by the status of being a prisoner, as well as by being situated in an area of confinement. (Few would argue that the back of a police car or the interior of a jail cell shares any of the privacy-attributes of a home, an automobile, an office, or even an hotel room.) Moreover, society insists that any subjective expectation of privacy a prisoner may have must always yield to the paramount interest of institutional security. Placing a final nail in the inmate’s privacy-coffin is the fact that virtually every correctional institution explicitly warns those making (or receiving) jailhouse telephone calls that the calls are in some manner being monitored or recorded. Translation: Say ‘so-long’ to anyone’s reasonable-expectation-of-privacy.
In addition to typical in-house written and audible warnings that the jail-phones are being recorded, most every prudent criminal defense attorney will advise his or her incarcerated client as follows: “Do not speak about the facts of your case over the telephone. Repeat, do not speak about the facts of your case over the telephone.” (Instead, talk about the weather; talk about how much you miss your cat.) This stern warning usually includes a reiteration of the fact that modern technology allows such phone calls to be monitored and recorded with digital clarity—and then easily played back at a whim using the prosecutor’s personal desktop computer; no more having to request barely-audible analog tapes, weeks in advance. Just as obvious, it is well-advised that neither the prisoner nor his friends say anything ‘bad’ about the prosecutor, judge, arresting officer, or the jury-system over the jail-phone! (Failing to heed this basic caveat has caused more than one criminal defendant great embarrassment…and dare one say a harsher sentence?)
While many of the foregoing points may seem simplistic, the practical reality is that far too many incarcerated defendants fail to realize that, quite often, the very best evidence a prosecutor will ever have is that which comes directly out of the defendant’s own mouth. The result? Some criminal cases that otherwise would have been extremely difficult (if not impossible) to successfully prosecute receive an unexpected boost in the form of a devastating new piece of evidence; this may range anywhere from a useful statement-against-interest, to a coveted full-blown-confession. In either event, the prosecutor cannot thank you enough! Your defense attorney, on the other hand, probably cannot come up with enough synonyms for “stupidity” to help you grasp the magnitude of what you have just done in damaging your case. (Lake County folklore has it that at least one local attorney requires his clients to sign a contract acknowledging that if they talk about the facts of their case on the jailhouse phone, they can be fired as client. This is known in the business as ‘tough-love.’)
Needless to say, some incarcerated individuals apparently believe that legal advice is given simply to be ignored. Even those defendants with the best intentions of avoiding legally ‘compromising’ telephone calls run an increased risk of error the longer they remain incarcerated. Call it the ‘oops’ factor. For example, one Lake County inmate was duly advised up one side and down the other by his attorney not to talk about his case over the jail-phones. Imagine his attorney’s upheaval when some days later a supplemental police report read:
Also while monitoring jail phone calls I observed Mr. [ — ] make several statements/admissions regarding his involvement in the crime. He also indicated that he desired to testify against his co-defendant.(Not-so-smart defendant)
The revelation above is essentially “Game Over” for any defendant seeking to protest non-involvement in the matter at hand.
As precise digital technology has surpassed the old days of having to locate and then fiddle with thousands of jailhouse conversations that were literally recorded on tape, it has likewise become an increasingly streamlined matter for prosecutors to make digitally recorded conversations an important feature of local criminal cases (including jury trials). For example, just last year, Lake County Assistant State Attorney Sue Purdy was able to thwart Timothy Bradley’s efforts to delay his trial for robbery through his attempt to feign mental illness. Recorded conversations between Bradley (housed at the Lake County Jail) and both his mother and girlfriend on the ‘outside’ more than adequately proved Bradley sufficiently understood cause-and-effect. (Bradley is now serving 40 years in prison.) Even more sensational was the 2007 Lake County prosecution of Steven R. Tillquist, charged with trying to kill his estranged wife by dousing her with gasoline and setting her on fire. One can only imagine how pleased Assistant State Attorney Emily Brinkman was to play a recorded jail-phone conversation at Tillquist’s trial, wherein jurors listened to Tillquist brag to his friend, “I took the lighter and, whoosh! I lit her up.” (Tillquist promptly received a 30 year sentence for attempted murder.)
As can be seen, there is an almost never-ending series of false-steps being taken by inmates who ignore plain warnings that jailhouse phone call calls are being monitored and/or recorded. In this manner, one Lake County inmate unwittingly let authorities know that immediately upon making bond he was planning to violate his no-contact provision. (Police effortlessly re-arrested him as he returned to the victim’s home, just as he had blabbed.) Another Lake County inmate was barred from having contact with his 14 year old step-daughter while under prosecution: Yet in recorded phone calls home he told the girl that both when she was to provide her deposition, and also when called to testify at trial, she would be sent to her grandmother’s house, and on a trip, so as to be ‘unavailable’ as a witness against him.
While defense attorneys certainly do beg their clients not to discuss matters using either jail or prison telephones, occasional twists in the ‘we’ve got you recorded’ game do occur: One Lake County lawyer was vindicated when the prosecutor listened to “literally hours and hours and hours and hours and hours of phone calls” the defendant made home—his own words exonerating the lawyer in the face of a false claim for failing to file an appeal. The moral of the story was equally made clear by the defendant’s recorded words to his mother: “Don’t rob pharmacies and you won’t go to jail for 25 [expletive] years…it’s not rocket science.”
James Hope is a Florida Bar Board Certified Criminal Trial Lawyer who has been practicing criminal law in Tavares, Florida, since 1987. He has also been the Publisher and Executive Editor of Lake Legal News since 2009. He may be contacted at LakeLegalNews@gmail.com, or through his website at www.AttorneyJamesHope.com. [PHOTO CREDIT: Bonnie Whicher]