The newly disclosed examples of law enforcement personnel listening to recordings of a lawyer’s phone calls with jailed clients are “outrageous” and opens the door to possible lawsuits, the chairman of the state’s public defense commission told The Maine Monitor.
State lawmakers funded a study this spring of current policies and practices to ensure that the communication defendants have in Maine jails and prisons with their attorneys remains private. The creation of the study committee ensures that immediate action by the Legislature will be delayed by at least a year.
Aroostook County Sheriff Shawn Gillen confirmed that some calls between a lawyer and his jailed clients were listened to, but insists it was unintentional and the practice was halted in May 2020. But at least one state official wants a permanent solution now.
“I don’t think that we need to wait for the Legislature for a fix, I think that the sheriff’s departments (and) the correctional facilities across the state just need to stop it immediately,” said Josh Tardy, a former Republican state lawmaker and chairman of the Maine Commission on Indigent Legal Services, or MCILS, which oversees attorneys appointed to represent defendants who cannot afford to hire their own lawyer.
Corey Hebert and Harley Simon, who were featured in an investigation published by The Maine Monitor this month, were represented by court-appointed attorney John Tebbetts. While held in the Aroostook County Jail, both men had multiple phone conversations with their lawyer that were recorded and later listened to by law enforcement without their knowledge or consent.
Jail administrators, law enforcement and drug enforcement agents in Aroostook County listened to 58 recordings and downloaded 17 additional recordings of calls multiple inmates made to Tebbetts, an investigation by The Maine Monitor found. The Aroostook County Sheriff’s Office didn’t tell Tebbetts it had listened to these confidential calls at the time.
Data released by the sheriff’s office show times users selected to “playback” or “download” recordings of Tebbetts and his clients’ phone calls. This meant “the call was listened to by the user with the name beside it” or that “the call was downloaded and either saved to a disc or a computer,” Gillen said.
“There may very well have been calls that were monitored, listened to, or recorded, but it was never done intentionally with the knowledge that the calls were privileged,” Gillen told The Maine Monitor for its July 9 article.
Jailed defendants who had their right to privately speak with their attorney “trampled upon” by jail administrators and law enforcement have reason for a potential lawsuit or class action, Tardy said.
Gov. Janet Mills (Democrat), who is the state’s former attorney general, said she supports the right of private communications between lawyers and their clients. However, she didn’t commit to taking specific action to address the recording or listening to attorney-client phone calls in the state’s jails.
“Governor Mills believes that County Jails must protect the confidentiality of privileged communications between an inmate and their legal counsel, a right afforded to them under the Constitution. Her administration will engage with the Office of the Attorney General and the Legislature in the coming session to determine what steps, if any, may be legislatively necessary to ensure this,” wrote a spokeswoman for Mills.
Republican gubernatorial candidate Paul LePage didn’t respond to multiple interview requests sent to his staff asking his perspective.
The study committee formed this spring by the Legislature, dubbed the Committee to Ensure Constitutionally Adequate Contact with Counsel, will review how other states manage confidential communication between attorneys and incarcerated clients, and make recommendations on how Maine jails and prisons can improve.
A report of the group’s findings is due to the Legislature by November, though no date has been set for the committee to begin its work.
The ability of defendants to privately consult their attorneys in all settings is an “urgently important issue,” said Rep. Erin Sheehan (D-Biddeford), who has been appointed to the committee.
“The most important thing is that Maine people feel confident that their rights are going to be protected … whether they are in a jail or not and whether or not these conversations are happening in some technologically mediated way — by the phone or a Zoom meeting — or if they’re happening in the courts,” Sheehan said. “… I see this as a big picture issue and my concern is that Mainers know that their rights are being protected.”
A bill that would have made it a felony for investigators or prosecutors to listen to attorney-client conversations and block those who did eavesdrop from further participating in a case died in committee earlier this year. The bill was written by Justin Andrus, executive director of MCILS, and sponsored by Judiciary Committee Chair Rep. Thom Harnett (D-Gardiner).
Harnett’s bill died due to resistance from the Maine Sheriffs’ Association, Maine Department of Corrections and Maine Prosecutors’ Association.
Earlier this year, The Maine Monitor revealed that state police detectives and supervisors within the Office of Child and Family Services had listened to recordings of phone calls of attorneys and jailed clients, who the attorney general’s office were actively prosecuting, in other counties as late as August 2021.
Securus Technologies, the phone vendor for most Maine county jails, added hundreds of defense attorneys’ phone numbers to its phone systems in May 2020 and again in May 2022 to block new recordings in response to concerns from state officials.
Attorney General Aaron Frey declined to speak to The Maine Monitor about its most recent article.
Three drug enforcement agents assigned to Aroostook County have said they were also aware of “privileged jail calls” in investigations or related prosecutions, The Maine Monitor reported. An internal investigation by the Maine Drug Enforcement Agency determined agents had stopped listening and not broken any rules.
Meagan Sway, policy director with the ACLU of Maine, said she believes the state bent or broke rules to investigate some alleged crimes in Aroostook County.
“It feels like law enforcement is so invested in pursuing the ‘war on drugs’ that they are willing to violate people’s civil liberties to do so,” Sway said.
“In the name of getting bad guys, there’s been all sorts of rules broken,” she added.
Sway has been appointed to the study group and said she hoped its work this year could find a solution with meaningful next steps and accountability that would also be practical for the Department of Corrections and jails to implement. She acknowledged the committee’s work was a “political process” and there has been a lack of political will to enforce the constitutional rights of low-income criminal defendants, she said.
“My hope is that as a committee we can come up with practical solutions that also zealously guard the rights of defendants to have access to legal counsel,” Sway said.
Samantha Hogan covers government accountability for The Maine Monitor. Reach her by email with comments and ideas for other stories at firstname.lastname@example.org.