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At least three more OC sheriff officials knew in 2016 and 2017 of illegally recorded telephone calls between jail inmates and their attorneys, in addition to a sheriff investigator’s knowledge in 2015 of such recordings, according to evidence presented Wednesday in Superior Court.

The disclosures raised questions about what the Sheriff’s Department did or didn’t tell county supervisors when seeking a renewal of the jail phones contract in October 2017.

Sheriff officials emphasized Wednesday evening the attorney-client recordings officials were apparently aware of in 2015, 2016 and 2017 appear to be separate from the computer glitch in January 2015 that caused the recording of more than 30,000 calls with numbers on a do-not-call list. That glitch was not brought to the attention of sheriff officials until June 2018, according to the Sheriff’s Department

Last week, a DA prosecutor testified about a July 2015 report from a sheriff investigator who wrote he had downloaded more than 112 recorded phone calls between inmate Lonnie Kocontes and his attorneys’ phones.

The evidence entered into court Wednesday were statements from District Attorney prosecutors describing additional specific instances in which sheriff officials downloaded or accessed the recordings in 2016 and 2017:

  • On April 14, 2016, Senior Deputy District Attorney Cynthia Nichols informed other DA officials and the sheriff’s “Special Assignments Sergeant” of a jail phone recording between inmate Hossein Nayeri and the phone number of his attorney, Sal Ciulla, according to a court declaration by Nichols. “[The Sheriff’s Department] looked into the recording and I was advised that recorded call was an inmate/jail phone call that was placed to Sal Ciulla’s cell phone,” Nichols wrote. The prosecutor did not listen to the call, but did inform the defense attorney about it and provided him a copy of the recording, she wrote.
  • On January 5, 2017, a sheriff’s deputy and sheriff investigator “accessed” a jail phone call recording between the office phone number of attorney Joseph Smith and his client, Michael Saenz, according to a letter from Deputy District Attorney Chris Alex.

Both statements were entered into evidence Wednesday by defense attorney Joel Garson, with no objections from the DA’s office. The DA’s lawyers told Superior Court Judge Jonathan S. Fish the statements reflected what the prosecutors would testify to under oath if they were called to the witness stand.

In California, it is a felony for anyone to record or eavesdrop without permission on inmates’ phone calls with attorneys, doctors, or clergy.

The recording of inmate discussions with their lawyers could put criminal prosecutions in jeopardy. Elsewhere in California, improper law enforcement recording of inmates’ protected conversations has led to reduced and dismissed charges, including a reduced sentence in a murder case.

After Wednesday’s court haring, Voice of OC asked the Sheriff’s Department’s chief spokesperson if any steps were taken after the July 2015, April 2016, and January 2017 instances to examine whether the jail phones system was properly blocking the recording of attorney-client calls, and if steps were taken to examine whether there were enough safeguards to prevent recording of attorney-client calls.

The spokeswoman, Carrie Braun, didn’t have an immediate answer Wednesday evening.

It was unclear Wednesday what training or guidance, if any, the Sheriff’s Department provided employees regarding not recording or listening to inmate phone conversations with attorneys.

Also protected under the law are the phone calls of inmates who represent themselves, known as “pro per” defendants. In several instances, a Sheriff’s Department contractor recorded such calls despite a court order granting the inmate unmonitored calls.

Braun said Wednesday she would need more time to find out the procedures the Sheriff’s Department previously had in place for making sure the inmate phone system did not record these “pro per” calls.

Disclosures that sheriff officials knew of attorney-client recordings for years also raised questions about whether they informed county supervisors when seeking an extension of the sheriff’s jail phones contract with Global Tel-Link (GTL) in October 2017, which the supervisors granted.

Molly Nichelson, the county government’s spokeswoman, didn’t have an immediate answer Wednesday evening.

Braun said the Sheriff’s Department didn’t know until June 2018 about about the glitch with recording calls with numbers on do-not-call list.

“GTL notified [the Sheriff’s Department in June 2018 that due to a glitch in their system, attorney-client phone calls were recorded.  These are calls in which attorney’s had proactively placed their numbers on a “do not record list,” and because of the GTL error were improperly recorded,” Braun wrote in an emailed response to questions.

“OCSD was not made aware of this until June 2018, so therefore would have been unable to share with the Board any issues at the time of the contract renewal in October 2017.”

Braun also emphasized the recordings discussed in the hearings last week and Wednesday may be separate from the recording glitch problem.

“My understanding of the calls being discussed in court today and last week is that they may not all be related to the GTL system error,” Braun wrote.

“Even today, with all our safeguards, if an attorney does not identify his number as one that should not be recorded, then there is the possibility that a recording could take place.  We would have no way of knowing it is an attorney-client call unless it is listened to.”

At that time of the extension request with GTL, sheriff officials had downloaded or accessed attorney-client calls in July 2015, April 2016, and January 2017, according to the court evidence and testimony.

Braun said the current procedure, put in place around late August 2018, is: “Prior to accessing a recorded call, the phone number being called is searched through open sources in order to attempt to identify who the number belongs to.  If the number is identified as belonging to an attorney, [jail phones contractor] GTL is immediately notified to place the phone number related to the recording on the private list.”

“GTL is also instructed to sequester all previous recordings related to that same number from access by the Sheriff’s Department. If an accessed recording is identified as a possible privileged communication, the user immediately stops listening to the recording and GTL is immediately notified to place the phone number related to the recording on the private list.  GTL is also instructed to sequester the recording or recordings from any further access by the Sheriff’s Department,” she continued.

“A Sheriff’s Department report is written and submitted to County Counsel who in turn lodges the report with the court.  It is the Sheriff Department’s understanding that the report is then made available to the court appointed special master.”

GTL officials have said a problem with a January 2015 computer upgrade caused the recording of over 30,000 protected phone calls with numbers on the “do not call” list. Sheriff officials have said they were first informed of that problem in June 2018 and that it was quickly fixed once discovered.

Much of the testimony Wednesday revolved around a January 2015 court filing by inmate Branden Shumate, who was representing himself.

Shumate wrote that while a court order granted him unmonitored phone calls in jail, he was still receiving warnings on his calls about them being recorded.

While there’s a separate attorney-to-client phone portal, “there is no such portal or separately designated option to ensure that my ability to communicate the preparations of my defense in absolute privacy and confidence are being respected,” Shumate wrote in his January 2015 court motion.

“The prerecorded menu also randomly states, ‘If you are an attorney, and you do NOT want your call monitored and recorded, please hang up and dial’ [a particular number]. This random warning/option can be heard by the caller and the call recipient and clearly implies to both that unless you are an attorney calling the alternate number, you are absolutely being monitored and recorded.”

Shumate’s January 2015 court filing was reviewed at the time by Deputy County Counsel Elizabeth Pejeau, who handled jail-related court matters on behalf of the Sheriff’s Department.

Pejeau testified Wednesday she had no recollection of following up to see if Shumate’s allegation was correct, and that she didn’t know how many other cases there were of “pro per” inmates alleging their calls were being monitored in violation of court orders.

Garson, the defense attorney, told the judge he would issue a subpoena to the County Counsel’s Office for other instances where inmates made such allegations.

The jail phone recordings issue came into public view in August, after Garson discovered calls between Waring and his prior attorney were recorded, as well as calls Waring made while he was representing himself despite a court order granting him unmonitored calls.

Waring, whose mother is former Real Housewives of Orange County star Lauri Peterson, faces attempted murder charges in connection with a 2016 shooting in Costa Mesa.

The start of Waring’s trial in the attempted murder case was pushed back Wednesday, from Jan. 8 to Feb. 19.

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.

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