What is the "Attorney-Client Privilege" and are jails exempt?

I've often wondered whether conversations that I have with clients are being recorded... even if there are not signs warning against it. While I want to believe that they are NOT, as I think that would be a clear breach of confidentiality between clients & attorney's, it would not surprise me. One of my favorite bloggers, Grits for Breakfast wrote on this topic in this article. And, Grits even quotes a nearby personality for central Texas, District Attorney for Williamson County, John Bradley, who said,

... jailed inmates have no expectation of privacy.

I agree with that statement for its general tenet, but definitely not in the perspective of when an attorney is talking with his or her client. Now, one could argue that if an attorney knows there is a chance a conversation is being recorded that he or she should control the conversation to compensate for that, but under some circumstances the information is needed and should be available based on the centuries old principle of attorney-client communication as discussed at length by the National Association of Criminal Defense Lawyers, here.

What I have done to avoid the risk is to speak with client's in person and in the rare instance where I am on the telephone with them, the first thing I say after identifying myself is that I want them to be very cautious in what is said just in case someone is listening in.

Maybe what we all should do as a defense bar is to begin with open records requests to the jails of our respective counties to obtain their official "policies" on such matters... things like their "General Orders" may be available. The unfortunate side to all of this is that we can almost rest assured that the written policies will not contain language that this occurs....

Thanks to Robert Guest another Texas attorney blogger for bringing this to our attention.

Good Job, Williamson County (for filing false report charges against a 'victim')

Seeing this story was very exciting to me, as it seems that for too long law enforcement has taken complaints from victims and pursued them, which often results in charges being filed against an individual. Most of the time, I find that I am representing the person charged as his or her criminal defense attorney, but today, in what is generally considered to be an unpopular action, law enforcement in Williamson County filed charges against someone for falsely reporting an offense.

The reported story may be read on the KEYE website here or on one of several other Austin-area news stations. But, to summarize the story,

a woman who was experiencing car problems pulled over on Highway 29 west of Ronald Reagan Blvd. Police then say a suspect pulled behind the woman offering her help around 8:30p.m. The individual sexually assaulted her at the location.

The complaining victim was arrested for false report on this past Friday. Detective John Foster of the Williamson County Sheriff's Office would not provide details about the matter, and this story is available for further review, here.

The reason that I congratulate Williamson County for this action is that too often people call the police and then back out of the charge later. Meaning, they complain about someone's action, get the person arrested, and then change their mind. Most often, this is in domestic violence / assault with bodily injury cases involving family violence. Too often, there are unwritten policies in place not to pursue charges against these complaining witnesses because law enforcement or prosecutors do not want to prevent people for calling for help out of fear of prosecution if they later change their story.

But, I must say, if you are not going to stand behind your testimony, do not cause someone the stress and anxiety of being arrested, jailed, and prosecuted, not to mention the thousands of dollars wasted in defending that matter. Hence, one more time, Good Job, Wilco!

Solving the Drug Problem starts by Decriminalizing Pot and Reducing State Jail Felony Cases to Misdemeanors...

Many of Grits for Breakfasts blog postings receive numerous hits and initiate heated debate, but Williamson DA Sees Drug Penalty Debate as Turf War really grabbed my attention because it involves Williamson County, which is one of the places I practice criminal defense.

John Bradley, District Attorney for Williamson County, was quoted as saying:

If SJF drug cases become misdemeanors, the shift in workload from district to county courts at law would be substantial. In selfish terms, a DA with only felony jurisdiction (like myself) would suddenly have an enormous percentage of the caseload moved off the docket. A county attorney with only misdemeanor jurisdiction (such as my colleague in Williamson County) would suddenly find herself with lots of new cases.

This would be an extraordinary movement of resources for no reason other than someone deciding to reclassify the crime from felony to misdemeanor. Punishment would require county dollars (in county jail) rather than state dollars (in state jail)....

The discussion became more heated in the comments that followed Grits blog entry. Although several of them made very valid points, the one in particular really made a point with me:

kaptinemo said...

How many times must the system be 'tweaked' before the recognition is made that it is the system, itself, that is the problem?

The 'system', in this case, is drug prohibition, which is the font of the complained-about caseload. Prior to 1914 and the Harrison Narcotics Act, which Federalized drug 'crimes' such as possession, we didn't have these problems...or caseloads.

Why bother playing around with trying to unravel the Gordian Knot of drug prohibition and all its' baggage? We've been trying to do that, to the tune of a trillion dollars since 1968, and we're no closer to achieving a drug-free utopia now than they were back then...as the complained about caseload demonstrates. A caseload we can no longer fiscally afford. It's long past time to consider the once unthinkable, and to speak the once forbidden, and talk about alternatives to the present - and punitive - DrugWar.

Now, in these difficult economic times, it may really be time to try something new, and different. I will be the first to admit that the legalization or the decriminalization of all drugs or even most drugs may not be in society's best interest, I am willing to consider alternatives. I absolutely agree that these SJF crimes should be reduced to misdemeanor offenses, as too often people are being convicted of felonies for miniscule amounts of an illegal substance. Even when these people are given deferred ajudication probations, often the conditions are so stringent that a saint would have a difficult time completing them.

So, as kaptinemo wrote about fighting the drug war and spending trillions of dollars, which I agree is a worthless fight and an unwinnable one at that, I propose the following:

• legalize the possession of less than 2 ounces of marijuana;
• criminalize its use when driving (similar to DWI, afterall, is pot really any worse than alcohol);
• allow the government to regulate the sale of marijuana and tax it (similar to tobacco); and
• reduce the levels from SJF to misdemeanor offenses on other drug crimes.

This process would guarantee that the marijuana is not laced with something more addictive or harmful and would allow the government to create revenue to help pay off its trillions of dollars in expenses. Not to mention, not fighting the "war on pot" would save counties, states, and the government in general large sums of money (purposely I am being vague as I do not have a figure to write).

Further, it would save money on prosecutions and those convicted of the SJF amounts of other substances. And, as to John Bradley's comment about shifting the burden of work to another office, I believe this would only allow a couple of things to happen:

• assistant district attorney's would have more time to review and handle the other, "more serious" cases; and / or
• given that these ADAs are also county employees, nothing would prevent them, aside from politics, from working on some of these lower level cases, unless the agencies in question absolutely refuse to work together or share responsibilities; afterall, both are paid by county tax dollars and both work for "The County".

To conclude, pushing more people into the criminal justice system, whether it is by placing them on probation or putting them in jail or prison is not the answer. We already have the highest percentage of our population involved in this system, at least among the developed world.