Blog note: this article references a grand jury report released more than 10 years ago.
Cops swore up and down they caught the gunman.
Khalil Owens fired the weapon that killed 25-year-old recent college grad Marvin Jackson Jr., they figured. The victim’s brother—who got caught up in the scuffle that led to the June 27, 2015, shooting in San Jose—said so himself, claiming to see the 20-year-old suspected gangbanger flash a gun under his shirt just before the fatal fight.
Owens spent three months in jail and faced a possible life sentence before his attorney convinced prosecutors to dismiss the charges after a closer look at the evidence. Turned out, video and eyewitness accounts pointed not to Owens but to a 27-year-old convicted felon known as Gregory “G-Stacks” Thompson.
A recorded call from Thompson to a sibling dispelled any doubt when he described being at the scene of the crime and lifting his shirt while arguing with the victim’s brother.
Prosecutors say jail calls offer a wealth of evidence—sometimes exculpatory, more often incriminating—that can prove additional crimes or protect victims and witnesses. But how easy should it be for them to tap into those conversations? For months now, Silicon Valley’s top law enforcement officials have waged a quiet war over how to answer that.
Sheriff Laurie Smith, who oversees the county’s two jails, maintains that she has a duty to protect sensitive call data by requiring prosecutors and anyone from an outside agency to obtain permission from the courts to eavesdrop on inmates. District Attorney Jeff Rosen insists that his staff attorneys should have click-to-listen access because, like the Department of Correction (DOC) under Smith’s charge, it’s no “outside agency,” but part of the same government family: the County of Santa Clara.
Should prosecutors prevail, they stand to gain what in this county would be unprecedented access to a surveillance tool prone to ethical pitfalls, if not outright abuse.
Yet officials have kept the debate from public view by handling it as a contract issue instead of what defense lawyers consider a major policy change. And, of concern to inmate advocates, apparently without soliciting input from directly impacted parties like Public Defender Molly O’Neal.
“Unfettered access by the DA without any check or balance is dangerous,” she cautions. “Attorney-client privileged calls are subject to DA interception, client calls that are not related to any particular case will be subject to free listening at any time, allowing for fishing expeditions at the expense of inmates who may simply be talking to loved ones.”
People accused of crimes have a constitutional right to private calls with their lawyers. Any policy that affects how the government protects that right merits more accountability than the county’s provided in this case, defense attorneys argue. “Open, public hearings on the proposal should be held,” O’Neal says, “so that the public may be heard and the action is transparent.”
Instead, it appears the motion to add the DA to the contract with Global Tel-Link—and to a new agreement for electronic tablets with Legacy Inmate Communications—comes before the Board of Supervisors on May 21 as a cursory line in a long slog of budget items.
Call Brawl
Sheriff Smith set off the fray last fall by abruptly imposing new rules on prosecutors who wish to tap inmate calls. Instead of a rote administrative form, jailers began to require a subpoena or warrant. The move stoked already simmering tensions between the sheriff and Rosen, who called the new policy a threat to public safety.
“Timely access to unprivileged jail calls is essential,” the DA wrote in a Jan. 8 letter rebuking Smith’s decision, “not only to the effective prosecution of criminals, but also to the safety of victims and witnesses.” He added: “Your change in policy effectively confers upon inmates an expectation of privacy to which they are not legally entitled and needless hurdles to your law enforcement colleagues.”
Except for communication with their attorneys, which are supposed to be registered on a do-not-record list, inmates have no reasonable expectation of privacy, Rosen argued. They receive several clear warnings that their conversations are being recorded, such as signs by the phone booths and audio reminders at the outset of each call.
Rosen also touted the economic benefit of wiretaps.
“An incriminating jail call can often lead to the early resolution of a case without a trial,” he wrote before rattling off examples to prove his point. “Recently, jail calls were the crucial piece of evidence influencing Efren Cervantes to accept a guilty plea to first degree murder, saving taxpayers tens of thousands of dollars.”
In the case against an accused abuser from Santa Clara named Noe Mejia, prosecutors spent a lunch break from cross-examination to request recordings of the defendant’s calls to the victim. The jail complied, disclosing calls that “were extremely compelling and disturbing,” Rosen said, showing that Mejia had no remorse for the injuries he inflicted on the victim and that he even tried to get her to lie to get him out of trouble.
“So it’s fuck me, then?” Mejia reportedly asked the victim in one of the calls. “You’re just going to let me sit in here? You gotta get me outta here.”
After the prosecutor played the recording for the judge, Mejia opted to plead guilty.
“Often inmates with pending cases will attempt to influence witnesses by appealing to their sympathy or through threats,” Rosen said. “This criminal dynamic is often found in domestic violence cases, which involve a unique dynamic between the defendant and the victim. It is also common in violent criminal enterprises like human trafficking, gang assaults and the distribution of narcotics. Inmates can dissuade witnesses through direct threats, or by plotting with people on the outside who might carry out actual assault. Monitoring these communications in the appropriate cases is essential to preserving the integrity of the system, holding criminals accountable and maintaining public safety.”
Whether Sheriff Smith’s policy prevents that is an open question.
Officials from the DA’s office say they went from receiving about 70 to 100 calls a month to almost none at all once the jails set the subpoena-or-search warrant standard in October. “Since that time, we have obtained jail recordings in a very small number of cases where we spent a considerable amount of resources to obtain an unnecessary search warrant for communications that are not legally privileged or confidential,” DA officials said in a written statement.
More than the hassle of extra paperwork, Chief Assistant DA Jay Boyarsky says, is the principle. “How long does it take to get a warrant?” he repeats when asked as much. “That’s a bit of a red herring because we’re not necessarily investigating a new crime. You shouldn’t really be seeking a search warrant if something isn’t a protected item. You don’t need a search warrant if something is in plain view.”
Jail officials who spoke on background accused prosecutors of abusing the system. Sheriff Smith didn’t comment for this story, but in a March 29 memo to the Santa Clara County Police Chiefs Association, she explained how she only issued her directive in response to a “significant increase” in demand from the DA. “The requests submitted by their office totaled more minutes of telephone calls than all other agencies combined,” she wrote. “As an example, one request provided to the District Attorney’s Office on Oct. 18, 2018, yielded 81,400 minutes (1,357 hours) of recorded telephone conversations.”
Before she cracked down, Smith said, requests soared from hundreds to thousands a month, and began coming by email and phone with stated reasons that seemed suspect. That’s well beyond the 70-to-100 monthly average DA officials estimated. As of April 1, however, she eased up a bit, promising to no longer require court orders for “certain copies” of jail calls—as long as they serve a legitimate investigative purpose.
Boyarsky disputes the notion that his office overwhelmed jail staff. “I’ve heard that before,” he says with a laugh. “Can you imagine if people criticized police officers for being too dogged? You know, it’s like, DA Rosen hires prosecutors to get to the truth, and evidence is where the truth is. And if we have access to evidence, we’re going to get it. It’s not like, ‘Hey, we want 30 hours of phone calls from this guy,’ and then someone at the jail needs to get 30 hours of reel-to-reel tape or something. They’re not burning cassettes or DVDs. That’s how it might’ve been 40 years ago, but nowadays, it’s all digital, and it’s all in the cloud. It takes minutes—just the press of a button, and here’s 10 hours of calls.”
In his January letter to the sheriff, Rosen also expressed concern about the search warrants tipping off inmates about prosecutorial surveillance. “This obviously defeats the purpose of obtaining these calls to discover evidence of the current crime, other crimes, threats to witnesses or victims or to expose an error in charging,” he wrote.
Deputy Public Defender Michael Ogul says he applauds the additional layer of accountability and finds it disheartening that the DA would contrive a workaround.
“Now, they’re at least required to give notice to the individuals and the courts,” he says. “I mean, the DA can already obtain this information. They just have to go through a relatively simple procedure of giving the court notice and saying they have a basis for requesting these calls. It’s pretty easy to issue a subpoena.”
To Ogul and a host of his colleagues, it seems the DA simply doesn’t want to give anyone a heads up. “Why is it so difficult to obtain the data for a subpoena that you need to do it this way?” he asks. “They’re really trying to eliminate oversight.”
If anything, Ogul says, local officials should trend in the opposite direction in the wake of high-profile slip-ups by Global Tel-Link, which last year blamed a software glitch for recording more than 1,000 privileged jail calls in Orange County.
“There’s no question that a jail call is a very important part of prosecution,” legal analyst and criminal defense attorney Steven Clark says. “A lot of cases have risen or fallen on jail calls, so the DAs want that information.”
Try as one might to warn defendants that they’re being recorded, they often become desensitized and slip up. When family members ask a new inmate what happened that led to the arrest, it’s hard not to answer.
But attorney-client privilege is sacrosanct, and Clark says the jail phone taps could use the added safeguard of judicial review. “To me, the biggest concern is whether the DA will inadvertently stumble across conversations with lawyers,” he says. “It’s just so devastating, I don’t care how much you try to sanitize it.”
There’s protocol for when that happens, of course, but by then the damage is done, Clark says. “It’s very difficult to unring that bell.”
Game of Telephone
This is by no means the first time the DA has lobbied for a straight line to jail calls. Nor is it the first time the Sheriff’s Office has required prosecutors to get a judge’s go-ahead in exchange for recordings. The DOC enacted the court-order standard in 2007 and 2014, but DA officials say Sheriff Smith gave them no prior notice before doing it this last time.
More than a decade ago, the Santa Clara County Civil Grand Jury investigated jail calls in response to a complaint that a prosecutor unlawfully acquired audio of an inmate’s conversation with his attorney. The 2006-07 team of civilian watchdogs found that the phone system lacked sufficient safeguards to keep privileged phone calls from ending up in the hands of prosecutors. The report also noted how recordings requested by prosecutors were previously made available without question and without notifying the inmate or his or her lawyer.
“However, DOC’s newly established policy, dated Jan. 16, 2007, restricts the release of any recording without a court order,” the civil grand jury report stated. The DA’s office groused about the practice then, too, saying the extra time involved in securing a court order hampered its ability to prosecute criminals and intercept non-privileged calls for safety reasons. However, the report said both the DOC and the DA agreed that “thousands of taxpayer dollars are wasted due to the latter’s failure to pick up or use requested inmate non-privileged telephone calls after they have been laboriously extracted and saved for the prosecutors’ use.”
A few years later, the DOC would revert to its past practice of less formal data sharing with the DA. And jail officials say they continued to grapple with an influx of requests from the DA’s office that required considerable time and effort to process. In 2014, the DA’s office requested remote access to relieve stress on jail resources. Rosen pitched a deal that would grant a small number of trained prosecutors access to the calls, reportedly similar to arrangements in Colusa, Contra Costa, El Dorado, Fresno, Humboldt, King, Lake, Marin, Monterey, Napa, Placer, Sacramento, San Diego, San Mateo, Santa Cruz, Stanislaus, Sutter and Yolo counties.
Not many jurisdictions have a distinct DOC like Santa Clara’s, however. The department’s existence has long complicated the question of who’s ultimately in charge of the jails. Sheriff Smith has used that ambiguity at times to distance herself from abuses—such as the systemic failures that came to light in wake of the 2015 murder of inmate Michael Tyree by three deputies—and, alternately, to proclaim independence from County Executive Jeff Smith.
“This county is unique, yeah,” Boyarsky says. “But ... the county executive has oversight responsibility for these jails.” As well as the contract, he adds.
County executive Smith says the sheriff’s refusal is part of her ongoing effort to assert control and evade accountability by “establishing a moat around her office.” He cited her resistance to having a jail management software system under civilian control as another example of trying to “segregate off as much information as she can about the jail and separate it from the county.”
Four years after Tyree’s murder precipitated a massive reform effort, the county is still in the process of creating an independent oversight office, and Smith believes that conflicts like the one over jail calls reflect a broader lack of cooperation from the sheriff. “I think that just indicates that she’s trying to protect herself politically from the risk of having an oversight monitor, which the board is working on,” the county executive says.
The county CEO also blames Sheriff Smith for problems with the botched rollout of the new Odyssey software at the Santa Clara County Superior Court, which left police officers throughout the region with faulty information about the status of thousands of warrants. Jeff Smith says the software switch would have been relatively seamless if the sheriff agreed to his preferred data-sharing arrangement. Guarding access to the jail calls is an extension of the same problem, he contends.
Sheriff officials, for their part, flat-out deny the CEO’s characterization, saying the Odyssey project fell under the purview of his IT Chief Ann Dunkin and the courts—not Laurie Smith. The bottom line, the CEO says, is that “the county is a team effort, particularly when it comes to criminal justice.” There necessarily “has to be a free flow of information,” he says. “It has to be protected and appropriately confidential, but the system doesn’t work if somebody refuses to share the appropriate data.”
Whatever the case, O’Neal says, it shouldn’t be assumed that inmates have no privacy at all. And it shouldn’t matter if the DA considers itself part of the same agency as the DOC—some information is better left hard to come by. “They should still have to explain why they need access to particular inmates’ calls,” she says.
Meanwhile, O’Neal notes, a host of critical questions remain unanswered. Like, who at the DA’s office will have access to the calls? How long will they store the data? What’s the standard for determining what calls they’ll listen to? What’s the process for ensuring they don’t intercept privileged calls? And why isn’t the current process adequate?
DA spokesman Sean Webby says Assistant DA Brian Welch gave county counsel a 12-year-old surveillance policy that addresses those concerns. “A process is already in place to maintain confidentiality of attorney-client communications, and there will be no change to this procedure when we are provided access,” Webby says. “This is not a laborious process because the communications are easily identified as confidential by the telephone number of defense attorneys in a database maintained by the [DOC]. Calls to registered lawyers are not recorded by the system.”
Further, he adds, Rosen “understands that defense attorneys want to protect their incarcerated clients” from self-incrimination or getting caught committing new crimes like witness intimidation. “By contrast,” Webby says, “we use jail calls to protect victims, witnesses and jurors as well as exonerate innocent inmates.”
O’Neal bristles at the DA’s rationale.
“It is pretty insulting to say that our only interests are that our clients not incriminate themselves as well as to portray their only interest being to protect victims and solve crimes,” she says. “The fact of the matter is that unfettered access to jail calls is intrusive and should be restricted to cases where there is an articulable reason to listen in.”
Bad Reception
Benee Vejar spoke to her husband every day during the four years he spent at San Jose’s Main Jail as a pretrial detainee. Overwhelmingly, she says, the conversations had nothing to do with the case that landed her partner and father of her three young kids behind bars. But they still got mined for anything remotely incriminating.
In a phone call from jail one day, Vejar, who worked as a mechanic at the time of his arrest, gave his spouse directions about how to pack up his tools in labeled bags for an upcoming move. According to Vejar, prosecutors interpreted the innocuous exchange as a coded confab about drugs. “Our lawyer told me, ‘Did you know they wanted to arrest you?’” she says. “I was going to get charged as an associate because of that jail call. It was crazy. My kids would have been left alone.”
Vejar has spent the past several years working for civil rights non-profit Silicon Valley De-Bug as an advocate for families like hers who got caught up in the criminal justice system. As an activist, she says she’s sat through countless court hearings where gang investigators testify about intel garnered from jail calls in which the mundane aspects of people’s lives are dissected for incriminating evidence.
“Aren’t you supposed to have evidence first and then get them arrested?” she asks. “Instead they’re putting people in there and then trying to add charges to force a guilty plea. And they’re admitting it. That’s bullshit.”
The practice of adding charges from jail call evidence seems to contradict county officials’ professed commitment to reversing mass incarceration, Vejar adds. “If this is the way they do things,” she says, “our families are never going to get home.”
To Jose Valle, an ex-inmate and fellow Silicon Valley De-Bug organizer, it’s especially cynical for the DA to frame jail call surveillance as a cost-saving measure. “There should never be a point in our present day where saving money by not going to trial should be a goal,” he says, noting how more than 90 percent of cases nationwide end in a plea deal. “Everyone has a right to go to trial; everyone has a right to due process.”
Javier Rios, a private criminal defense attorney, says he’s had to listen to untold hours of intimate conversations between defendants and their families. So many of those recordings made him question whether prosecutors requested more calls than reasonably needed. Legalities aside, he says, he questions the ethics of extending the already far-reaching boundaries of jail surveillance.
“There’s no expectation of privacy in the jails, that’s true,” he cedes. “But on a human level, I have to wonder—is it right? Is it fair?”
May 15, 2019
San Jose Inside (blog)
By Jennifer Wadsworth
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