Two murder defendants want their indictments thrown out after state investigators admitted listening to private phone calls they made in jail to their lawyers, newly filed court records show.
Maine State Police detectives have said they heard parts of recorded phone calls that Bobby Nightingale and Jaquile Coleman made at two Maine county jails to their court-appointed lawyers in 2020, The Maine Monitor reported. Prosecutors have not said which calls were heard and defense lawyers now say the court should assume law enforcement officers heard everything.
“The state is claiming they can’t tell me which phone calls they heard, which is ludicrous,” said Verne Paradie, who represents Coleman and also has joined Nightingale’s defense.
The requests to dismiss the indictments were filed in court in July. The attorney general’s office has opposed the request in Nightingale’s case, but has not yet responded to a separate request to dismiss Coleman’s murder charge.
The two identical motions are before two different judges, who are likely to make their own decisions later this year.
A grand jury indictment is not a finding of guilt, but rather that there is enough evidence for prosecutors to move forward with criminal charges.
Nightingale was indicted by a grand jury in October 2019 for allegedly shooting two men and committing various other crimes in Aroostook County. His trial is scheduled to begin Aug. 15.
The Maine Monitor reported in January that the Cumberland County Jail recorded Nightingale’s phone calls to his attorney, John Tebbetts, of Presque Isle, after he was transferred to the jail in December 2019. The nine-hour round-trip drive was nearly impossible for his lawyer to make, so they relied on the phones to discuss his case. Recordings of some calls were later shared with the Maine State Police, the Monitor found.
Maine county jails routinely record all phone calls defendants make from jail, but attorney calls are supposed to be off limits. Nearly 1,000 phone calls prisoners made to attorneys were recorded by the Aroostook, Androscoggin, Franklin and Kennebec county jails between June 2019 and May 2020, an investigation by The Maine Monitor found.
Other Maine jails also recorded attorney calls and shared recordings with police or prosecutors as far back as 2014, county court records show.
State police Det. Greg Roy said he didn’t report hearing calls that he suspected were between Nightingale and his attorney Tebbetts or the law firm’s secretary until reading a news article about a similar incident, according to a new affidavit filed in court.
Roy listened to approximately 100 hours of Nightingale’s recorded jail calls, taking note of the date and time, and wrote a summary of the content that could be used as evidence, according to his affidavit. Roy testified in the affidavit that he stopped listening and did not make the same notes for two calls he believed may be with Tebbetts or the law firm secretary.
The state’s lead prosecutor, Megan Elam, said the attorney general’s office had provided a disc of the calls to Nightingale’s defense lawyers in July 2020 for them to review, according to court records.
Defense lawyers now argue that the state violated discovery rules and the defendants’ right to attorney-client privilege by not answering their questions about the specific calls the detective heard.
The lawyers asked the court to force prosecutors to disclose the specific phone calls and conversations that were heard, or dismiss the cases under the assumption that “highly confidential information was heard by law enforcement” in violation of the defendants’ constitutional rights, according to court records.
State prosecutors responded by saying it was “likely the defense counsel’s error that led to the inadvertent disclosure” of the calls because they had not registered their phone numbers with the jail, according to a memo opposing the request to dismiss Nightingale’s charges.
A spokeswoman for the attorney general’s office declined to comment further and said the office does not comment on ongoing litigation.
Most Maine county jails contracted with Securus Technologies of Carrollton, Texas, to install their phone monitoring systems. Even though many jails use the same phone provider, attorney phone numbers are not blocked from being recorded at all the jails even when an attorney makes their phone number “private.”
Securus Technologies made hundreds of attorney phone numbers “private” in May 2020 and again in May 2022 in response to concerns from state officials that some calls to attorneys were still being recorded, and shared with law enforcement and prosecutors.
In a separate incident, phone calls were recorded by the Androscoggin County Jail and shared with another detective, who reported hearing part of at least two confidential calls between Coleman and his attorney, Paradie. Coleman was indicted in October 2020 for allegedly shooting his girlfriend Natasha Morgan. He is scheduled to go to trial in November.
“I’ve been trying since the first notification I got to get them to tell me which calls they listened to. I still can’t believe a detective in a homicide wouldn’t write down the date and time of an attorney (call) they might have heard,” Paradie said.
Paradie later learned that his cell phone was not registered with the jail or Securus as belonging to an attorney, emails show. This allowed the jail’s phone system to record some of his calls.
Paradie said he has been given vague information and date ranges for the calls detectives heard. Paradie said it was disturbing that the state was claiming it did not write down dates, times or notes about recordings that potentially involved attorneys.
“I have to assume they heard everything because they won’t tell me what they heard,” Paradie said.
Samantha Hogan reports on government accountability for The Maine Monitor. Reach her with comments and story ideas by email: firstname.lastname@example.org.