Editorial: Bugging conversations between criminal defendants and their lawyers is bad news

Police and prosecutors bug jail cells. It’s sometimes the best way to get evidence against a criminal defendant, or information about other crimes committed by other people. It’s a better bet than relying on the word of jailhouse informants, who have an incentive to rat out their cellmates and may sometimes just make things up in exchange for money or the prospect of better treatment. A digital recording of the suspect’s confession in his or her own voice can be a lot more useful.

Maybe that’s why police wired a room at the Clara Shortridge Foltz criminal courthouse in downtown Los Angeles. The problem is that the room is used for defense attorneys to confer privately with the people they represent, and that’s what Deputy Public Defender Tiffiny Blacknell was doing with her client when the Los Angeles Police Department recorded what should have been a privileged conversation.

Interim Public Defender Nicole Davis Tinkham reported the recording operation and her office’s investigation to the Board of Supervisors in July. A Los Angeles County prosecutor said in a court document that the recording was made by the LAPD at the request of a deputy district attorney, and with cooperation from the Sheriff’s Department.

Explanations in defense of the recording basically boil down to this: The law allows law enforcement agencies to bug jail cells, the criminal courthouse is essentially an extension of the jail, the conference room sometimes holds defendants without their lawyers, recording the attorney-client conversation was inadvertent, they didn’t listen to the recording and don’t plan to, and it’s no big deal.

They’re right, but they’re wrong. Surreptitiously recording criminal defendants in custody in order to get evidence against them or others is generally legal. But doing it at the courthouse is a very bad idea and a very big deal. It damages the trust that criminal defendants must put in their lawyers if they are to present a full and vigorous defense. The practice should stop.

The Fourth Amendment protects against unreasonable searches and seizures, and under various court rulings that means government agents must first get warrants before listening in on private conversations in situations in which people have a reasonable expectation of privacy. But being locked up isn’t one of those situations.

Nor can the government generally question suspects without first reading them their rights (the famous Miranda warning). But in the case of Illinois vs. Perkins, the Supreme Court reasoned that it was unnecessary for the government to give the standard warning when the agent doing the questioning is undercover (as a cellmate, for example) because the defendant won’t feel pressured to say anything he doesn’t want to. Or so the argument goes.

Bugging and recording are used to avoid various problems with jailhouse snitches. “Perkins” recording operations have become a fairly standard practice in jails and other custody facilities, including the lockup rooms in courthouses where criminal defendants are sometimes held before and after their court appearances.

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But criminal defendants also have a 6th Amendment right to counsel, and that means being able to speak freely with their lawyers without fear that their private conversations will be overheard, recorded and used against them by prosecutors, regardless of the room in which they are conferring. Law enforcement ought to bend over backwards to protect those rights. To do otherwise undermines their role as honest players in a fair criminal justice system — and, by the way, could invalidate whatever case they are assembling for prosecutors.

Courthouses are special places. They are monuments to justice and should not be reduced to eavesdropping parlors. Just as judges and elected officials lashed out earlier this year at immigration agents who stalked courthouses for people who were in the country illegally, so should they object to police and prosecutors bugging the same buildings in quests for evidence.

Even if it is true that recording the attorney-client conversation was a mistake and that no one listened in, the damage is serious. Public defenders already have a hard time getting their clients to confide in them. Lawyers and defendants now know that at least once, the government listened in on such a conversation. That’s not a good way to instill confidence in the justice system.

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