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Denny_Crane

What Can Detainee Do?

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A post-conviction detainee has a call scheduled with her appointed private attorney at a county jail in Illinois. Their meeting concerns a motion hearing for the following day. Of course, the conversation is private and privileged. They speak for an hour on strategy, tactics and future motion hearings. A jail official and two detectives listen in on their private communications.

 

Obviously, this will be hard to prove and even harder to find a solution.

 

The prisoner was led to a tele-conference room for this call by a senior jail official. In the past, these calls were held in a staffers office with little fanfare. The official places the call, leaves the room, and crosses the hall to where the prisoner knows a similiar system exists, as two other well-dressed men join and slip-into the room.

 

The detainee has her hour-long talk, is curious of what she saw, but thinks little on this change of procedure. When the phone call ends the jail official is immediately present, he appears nervous, tries to distract being unaccustomarily polite and chatty. The prisoner again notices and recognizes the two men leave, one a local detective, as they slip-out from across the hall.

 

The administrator leads her back to cell, but makes the mistake in conversation of saying that he will be free to meet with counsel the following day. This meeting was only mentioned in the private phone conversation. Later, she asks another jailer who those two men were and it's confirmed they were detectives.

 

Previously, the prisoner has had brief problems with legal mail delivery, legal calls or meetings with counsel. His attorney has also reported a few minor inconvienances where he was not allowed to meet with his client due to stated "security concerns".

 

Their case is now entering a contentious, critical stage where a series of motions will likely decide the matter.

 

All this is suspicous activity, but would be very hard to prove that officials are deliberately interfering in the attorney-client relationship. What can a detainee do?

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A defendant may establish a Sixth Amendment violation where the government intentionally intrudes on the attorney-client relationship through the interception of confidential communications. See, e.g., United States v. Morrison, 449 U.S. 361, 364-65, (1981). A defendant is entitled to relief for the prosecution's improper use of protected attorney-client information, however, only if he can show he suffered prejudice as a result. Clark, supra; Steele, 727 F.2d at 586 ("Even where there is intentional intrusion by the government into the attorney-client relationship, prejudice to the defendant must be shown before any remedy is granted).

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What does their attorney say?

 

The attorney is more pragmatic. He claims he'd be surprised if they weren't listening or recording. Counsel claims he always assumes that someone is listening, unless he's in his own office.

 

This has not soothed the detainees concerns.

 

Elsewhere on FindLaw:

 

Can I Record a Conversation at Work?
By Ephrat Livni, Esq. on April 8, 2016 10:12 AM
 

You can always record a conversation if you let everyone know it is happening and all parties consent. Even if people don't affirmatively agree, when they keep talking to you after you gave them notice, you've received a kind of consent.

But if you want to secretly record someone that is a whole other ball of wax and whether you can do it legally depends on several factors. Let's consider them.

 

Read more: https://blogs.findlaw.com/law_and_life/2016/04/can-i-record-a-conversation-at-work.html

 

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Look at State v. Cory, 62 Wn.2d 37, 382 P.2d 1019, 5 A.L.R.3d 1352:

 

 

"The prosecution is not entitled to have a representative present to hear the conversations of accused and counsel. We consider it equally true that a defendant and his lawyer have a right to talk together by telephone without their conversations being monitored by the prosecution through a secret mechanical device which they do not know is being used. It would not be an answer to say that the accused cannot complain of the interception of his telephone conversations with his counsel if he had on other occasions ample personal consultation with his lawyer, face to face, which no person overheard. That fact would [382 P.2d 1022] not erase the blot of unconstitutionality from the act of intercepting other consultations...

 

"We think it is further true that the right to have the assistance of counsel is so fundamental and absolute that its denial invalidates the trial at which it occurred and requires a verdict of guilty therein to be set aside, regardless of whether prejudice was shown to have resulted from the denial..."

 

It is Washington state, but may help.

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The Unified Code of Corrections (730 ILCS 5/3-2-2(t) (West 2008)) and the Code of Criminal Procedure of 1963 (725 ILCS 5/103-4 (West 2008)) ensure that prisoners' and inmates' privileged communications with their attorneys, whether in person, by telephone, or through the mail, will not be subject to monitoring by the State.

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The Illinois Supreme Court stated:

        “The attorney-client privilege exists in order that one who is, or seeks to become a client, may consult freely with counsel without fear of compelled disclosure of information communicated by him to the attorney whom he has employed, or seeks to employ. The essentials of its creation and continued existence have been defined as follows: ‘(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.’ 8 John H. Wigmore, Evidence, sec. 2292 (McNaughton Rev.1961).”

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The attorney is more pragmatic. He claims he'd be surprised if they weren't listening or recording.

Counsel claims he always assumes that someone is listening, unless he's in his own office.

 

So, is the attorney doing anything about this incident?

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