Colorado Jails Recording Inmate Phone Calls Controversy | Westword

Did Recording Jail Phone Calls Violate Attorney-Client Privilege?

The attorney this the practice may violate the constitution.
Photo by Reynier Carl on Unsplash
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Today, March 21, a hearing is scheduled in Larimer County District Court on a motion arguing that the recording of multiple phone calls at the jurisdiction's main jail ran afoul of attorney-client privilege and may point to systemic violations of the 6th Amendment to the U.S. Constitution, which guarantees certain rights to criminal defendants. Denver-based attorney Jason Flores-Williams likens the results to "the fox watching the henhouse."

In contrast, 8th Judicial District DA Gordon McLaughlin, whose office is defending against the motion, contends that the issue essentially sprang from Flores-Williams choosing to communicate with his client on a phone line whose calls are always recorded rather than a separate line for attorneys, where calls are not. As a result, the fact that the call was recorded "does not implicate any constitutional issues whatsoever," he contends.

Flores-Williams's client, Ramon Sepulveda, was among ten suspects arrested in May 2021 in connection with what authorities described as a drug-trafficking ring linked to fentanyl and meth distribution. The motion asserts that several calls between Flores-Williams and Sepulveda, who's being held at the Larimer County Detention Center, "had been wrongly disclosed in discovery," according to Flores-Williams. "The Northern Colorado Drug Task Force records calls, then allegedly decides whether to stop listening."

Such actions aren't unique to Larimer County, contends Flores-Williams, who says that he's learned on quite a few occasions over recent years that his phone chats with clients being held at assorted Colorado facilities had been recorded. "That's why, at the beginning of every conversation, I have to say, 'This is so-and-so's attorney. This is a confidential, privileged phone call, so stop recording.' Whether it's at the federal or state level, I think every attorney has to do that kind of thing," he notes.

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Gordon McLaughlin is the district attorney for the Eighth Judicial District of Colorado.
Nonetheless, Flores-Williams argues that police agencies can decide whether to keep recording or not, and that "has a chilling effect that's become wholly intolerable. Jails are being used as discovery tools for law enforcement, and they weren't meant to be that on any level.

"This can't be the new normal," he adds. "A client in jail has the right to call me and for us to have a wide-ranging, honest discussion without the remotest consideration or fear that the government or state is listening and making judgments about that conversation."

The response from McLaughlin's office to his motion left him "confused," Florence-Williams says. But the DA considers the matter quite simple.

"There is no routine recording of attorney-client communication" at the Larimer County Detention Center, he says: "As outlined in our motion, Mr. Flores-Williams' contentions about what occurred are contradicted by the plain facts. There are two separate telephone lines — one for attorneys, which is never recorded, and one for non-attorneys, which plays a clear and unambiguous recording each and every time stating the calls are recorded."

McLaughlin maintains that recordings of phone calls between inmates and non-attorneys, including family members and friends, "are made for a plethora of investigatory and victim-safety reasons, which have been upheld by courts countless times."

In his view, it was Flores-Williams's choice "to communicate on the non-attorney line and ignore those repeated warnings," and "as soon as law enforcement learned of [his] mistake, they have worked diligently in coordination with our office to protect his client's rights."

But the issues go well beyond the specifics of this particular case, stresses Flores-Williams, because "the judgment about these recordings and whether it falls within the defendant's rights is being made by the law enforcement agency that's actually prosecuting that defendant."

Click to read the People v. Ramon Sepulveda Motion: Surveilled Attorney-Client Communications and the people's response to the motion.
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