State lawmakers have passed legislation that aims to crack down on jails that record attorney-client phone calls by disqualifying investigators who listen to private jail phone calls and directing prosecutors to adopt statewide procedures to ensure confidentiality by January 2024.
Following an investigation by The Maine Monitor in 2022 that revealed six county jails routinely recorded private attorney-client phone calls, then shared dozens of those recordings with police or prosecutors, legislators passed a sweeping reform measure in June and sent it to Gov. Janet Mills to sign.
A spokesman for Mills’ office said she is reviewing the bill.
“We developed a really solid, implementable new way of ensuring these calls aren’t recorded,” said state Sen. Anne Carney (D-Cape Elizabeth), who chairs the Judiciary Committee.
Sheriffs overseeing the state’s 15 county jails would be required to develop a registry of attorney names, phone numbers and contact information to ensure the confidentiality of attorney-client phone calls, according to the new legislation. They must also develop a process to follow if a private attorney-client call is recorded.
All eight district attorneys and the attorney general’s office would also be required to adopt a written policy about protecting confidential attorney-client communications for their offices’ employees and people working with the offices.
Prosecutors must also develop a consistent procedure with police for handling recordings of privileged calls if more are found.
Prisoners have a right to communicate with their lawyers, including by telephone, under the Sixth Amendment of the Constitution, legal experts said. The contents of those conversations are private and protected by what’s called “attorney-client privilege.”
Joseph Jackson, the executive director of the Maine Prisoner Advocacy Coalition, said the group supports the new legislation and protections of prisoners’ legal conversations. He noted that the new measure underscores the flaws in Maine’s jails and prisons.
“The adoption of this legislation confirms the inadequacy of our current system of attorney-client communications,” Jackson said.
Six county jails recorded nearly 1,000 private phone calls that defendants made to their lawyers on the jails’ phone systems between June 2019 and May 2020, the Monitor’s investigation revealed.
Some of those recordings were shared with and partially listened to by law enforcement or prosecutors. More privileged calls between attorneys and jailed defendants were recorded by county jails in 2021, the Monitor reported.
“A few years ago, the attorney general’s office became aware of limited instances where a prosecutor or a law enforcement officer received a privileged call from a county jail. This was troubling to everyone,” the Attorney General’s Criminal Division Chief Lisa Marchese testified to state lawmakers earlier this year. “Immediately, the attorney general’s office adopted an informal process where … a prosecutor or law enforcement officer would immediately stop listening and the prosecutor would notify defense counsel of what had occurred.”
The attorney general’s office is not aware of any additional attorney-client phone call recordings, Marchese wrote in response to written questions from the Monitor.
The attorney general’s office still has not written a policy about a process to protect the confidentiality of phone calls between defense attorneys and their incarcerated clients. The office anticipates drafting a policy pursuant to the new measure, the public access officer said in June. Marchese committed to meeting the deadlines in the legislation once it becomes law.
Maine State Police detectives working on homicide investigations with the attorney general’s office received recordings and listened to parts of privileged calls that jailed defendants made to their attorneys in 2020 and 2021, the Monitor’s investigation showed. All three men were later convicted of murder.
Homicide prosecutors and detectives will have to determine whether any current practices about listening to jail calls will need to be changed as a result of the new measure, Marchese wrote.
“In those instances where law enforcement or prosecutors were provided with privileged calls, I have been assured that nothing of substance was heard,” Marchese told lawmakers.
Going forward, investigators will face increased consequences based on how long they listen to a recorded privileged phone call, Carney said.
Under the legislation, if an investigator briefly hears a recorded privileged call, the contents of the call would not be admissible in a criminal proceeding.
If the investigator doesn’t “immediately discontinue viewing or listening to the communication” as soon as realizing an attorney is part of the communication, then the investigator is disqualified from the rest of the case or appearing as a witness.
Finally, if a person hears information relevant to a current or anticipated criminal charge or the discovery of new evidence, they are disqualified from the investigation or appearing as a witness in all related cases.
If signed into law by Mills, Maine’s new measure would be much more robust than other states, said Corene Kendrick, the ACLU national prison project deputy director.
“Having the language in there about what happens to the intercepted communications and how it can’t be used, and how the investigator is not permitted to participate in the investigation, that finally gives some teeth to enforcing the Sixth Amendment rights of incarcerated people accused of crimes,” Kendrick said.
Carney, who is halfway through her term in the state Senate, said she will seek updates from every agency next year to ensure the policies and procedures required by the new law have been implemented.
“Some people wanted a weaker remedy or consequence and others wanted a stronger remedy or consequence, and I feel that the language that we ultimately included in the bill balances out the concerns of both of those sides,” Carney said.
Restoring faith in privileged communications
The Monitor identified nearly 200 defendants and 46 law firms that were recorded by Maine jails between June 2019 and May 2020, data showed.
Many of the prisoners whose calls with their lawyers were recorded relied on a court-appointed attorney through the Maine Commission on Indigent Legal Services, or MCILS. Defense lawyers told lawmakers last year that their incarcerated clients were hesitant to speak to them on the jails’ phones because of fears those conversations would be recorded.
Jim Billings, the MCILS executive director, said the new law has “pretty strong remedies” that should ensure there’s no benefit from listening to recordings of privileged calls.
“I think the bill is a step in the right direction because it does carry a consequence for violating that attorney-client privilege by listening to the calls,” Billings said. “There’s a lot of calls that are not going to be privileged and inmates should be cautious about what they say over the phone to non-attorneys, but they should feel safe speaking to their attorney. And this is a step in the right direction.”
Billings said he hoped the new law would improve the faith defense attorneys have in the jails’ phone systems.
The new law will also require MCILS to send a backup list of attorney phone numbers to the jails each week. That would ensure the jails have an up-to-date list of attorneys whose calls should not be recorded. It will also serve as official notice to the jails, police and prosecutor whether someone is an attorney.
Billings — whose first day at MCILS was on May 22 — said he was trying to figure out the agencies’ technical capabilities to produce this report.
Sheriffs make changes
Most Maine’s jails contract with the prison telecom company Securus Technologies to provide inmate telephone services. One jail, which also previously recorded attorney-client phone calls, contracts with GTL, another large prison telecom company.
Some Maine sheriffs have taken steps to identify missing attorney phone numbers and also limited who can potentially listen to recordings of calls through the jails’ phone systems, the Monitor reported. Securus Technologies also helped the jails add hundreds of attorney phone numbers to lists of contacts who shouldn’t be recorded.
Jails routinely record each call made by people in jail. Sheriffs previously told the Monitor that recordings are used to protect the safety and security of the facility. But calls to attorneys are supposed to be the exception to those recordings.
Handbooks given to prisoners, signs posted in the jails and messages played at the beginning of recorded phone calls had said that calls with lawyers would not be recorded, yet many were.
Defense lawyers sometimes had not properly registered their phone numbers with each jail, which led to their calls being recorded.
In at least one instance, a defense lawyer was recorded more than 300 times by the Aroostook County Jail, which law enforcement and county employees with logins to the phone system used to download or playback — a term that means to “listen to” — dozens of recordings of his calls with jailed clients, the Monitor reported.
A legislative study group in 2022 found that the jails did not have consistent or written procedures for lawyers to register their phone numbers.
State lawmakers directed the County Corrections Professional Standards Council to host a meeting of sheriffs, defense lawyers, prosecutors, judicial branch officials and local law enforcement to write consistent policies and procedures for protecting and responding to recordings of attorney-client phone calls. Both would be adopted by all agencies across the state.
Other provisions of the legislation include:
The Maine Criminal Justice Academy must add a criminal defense lawyer to its Board of Trustees, which will increase from 18 to 19 members.
The attorney general’s office must develop a training program before Jan. 1 for state, county and municipal law enforcement investigators in criminal cases about protecting confidential attorney-client communications and how to respond if they receive a recording of a privileged call.
Basic law enforcement and correctional officer training must include instruction on the confidentiality of attorney-client communications.
All 15 county jails must designate space within the facility where attorneys can meet with incarcerated clients and exchange case materials.
The State Court Administrator must write a report to legislators describing the areas in courthouses and secure holding areas where confidential attorney-client conversations can occur. The court must also provide a plan to develop adequate space within courthouses where there are not private meeting rooms.
Gregory Sisk said Maine’s new measures were commendable. Sisk is a tenured law professor with the University of St. Thomas School of Law in Minnesota and has provided pro bono representation to prisoners in appellate cases dealing with the interception of attorney-client phone calls and mail.
“I’m not optimistic that other states are going to leap into following Maine’s lead. Not because they shouldn’t,” Sisk said. “Not because it isn’t what the courts would do if they became aware that these things were going on, but because there simply isn’t a political benefit to bringing these issues up. So, it depends on those of us who are representing prisoners, when we see these things, to call the alarm.”
A separate bill proposed to provide people in jails with free telephone calls with their attorneys was substantially changed by lawmakers and ultimately will not eliminate those costs for people being held in jail prior to trial or serving short sentences.
The Criminal Justice and Public Safety legislative committee last year passed a law to cap phone call costs in jails and prisons, the Monitor reported at the time. The Maine Department of Corrections will now be required to draft, publish and implement guidelines for how each facility will provide free calls to some prisoners with less than $10 in their facility account, because of the new legislation.