Phone company Global Tel Link (GTL) kept possibly hundreds of other U.S. jails in the dark about phone system problems it knew of since 2015 that caused the illegal recording of attorney-inmate calls in Orange County, according to a 42-page legal motion filed by OC Assistant Public Defender Scott Sanders.
Sanders’ motion, filed in Superior Court Wednesday in the case of his client Justin Weisz, raises questions of whether GTL faces criminal liability for knowing about its phone system’s illegal recording problems for years and allowing it to continue in other county jails using the company’s product, according to Lawrence Rosenthal, a civil rights and criminal law professor at Chapman University.
“It’s very difficult at this juncture to know exactly what happened and why, but it is true that there’s a criminal statute in California that makes it unlawful to record conversations between inmates and attorneys,” Rosenthal said in a phone interview.
The company “should have known that they needed to upload these ‘Do not record’ numbers,” Rosenthal added. “But they didn’t. That kind of negligent failure, while it could support civil liability for damages, might not support criminal liability.”
“But perhaps it’s worse than negligence.”
GTL spokesman James Lee said in a phone interview that although Sanders’ motion “raises the specter of nefarious acts,” a majority of Sanders’ points “are not relevant to his case.”
“They make nice newspaper copy,” Lee added, “but the issues that he raises all happened before his client was ever arrested.”
Lee said “in Mr. Weisz’ case, the documents have shown there were no phone calls recorded” or accessed between Weisz and his legal representation.
“What Mr. Sanders is doing is trying to throw everything at the wall to see what sticks,” Lee said. “What the motion does, other than gain Mr. Sanders a little bit of attention, certainly doesn’t advance his cause.”
Revelations last year that more than 1,000 phone calls were improperly recorded inside Orange County jails, including calls between attorneys and their clients, raised questions about how widespread the potential constitutional violations are and who should be held accountable.
GTL is the nation’s largest jail phones vendor, contracting mainly with local and state governments that operate most of the jails and prisons in the United States.
Under California law, it’s a felony for anyone to record or eavesdrop without permission on inmates’ phone calls with attorneys, doctors, or clergy.
Sanders’ new allegations could prompt hundreds of other U.S. counties to consider — or publicly acknowledge — whether their jails are illegally recording protected conversations between inmates and their attorneys in states that similarly outlaw recording attorney-client calls, according to Rosenthal.
“In those other states where it’s illegal to record these conversations, they need to be getting to the bottom of this in the same way that Orange County needs to get to the bottom of this,” he added.
Sanders in his motion is requesting a broad court order for key documents relating to GTL’s investigation into its phone system problems. This includes communications between GTL and law enforcement agencies that contract with the company.
Sanders in his motion alleges GTL knew as far back as 2015 about problems with a computer upgrade to its phone system, which failed to upload attorneys’ phone numbers to a “Do not record” list. That year the counties of Charlotte and Pinella in Florida alerted the company to problems with phones in their jails.
Records requested from Charlotte County by Sanders’ team show GTL’s Vice President, George McNitt, signed a letter in March 2015 to the Charlotte County Sheriff’s Office explaining the software upgrade problems and promising a fix.
It’s a letter that’s nearly identical to another one GTL would send to the Orange County Sheriff three years later in 2018, but signed by someone else at the company, according to Sanders’ motion.
Sanders says both letters by GTL indicate the company only “intended to allay concerns in Charlotte, even though McNitt had every reason to believe the failure to upload attorney phone numbers had occurred in every facility GTL had” performed a phone system upgrade.
Sanders also cites sworn testimony by McNitt, during the attempted murder case of Joshua Waring, that GTL only “notified the two (counties) that contacted us” when the company learned about the problem.
McNitt also possibly lied when he testified that he wasn’t involved in writing the letter to the Orange County Sheriff’s Dept. that was signed by a different GTL executive, according to Sanders.
“If he wrote the Charlotte Letter that he signed, then he was involved in writing the Orange County Letter that included both identical content and content rephrased from the Charlotte Letter,” Sanders’ motion reads.
Lee said the McNill testimony doesn’t have relevance to Weisz’ case.
“It doesn’t even have standing as a factual piece of info for Mr. Sanders’ defense of Mr. Weisz,” Lee said. “I mean, I would be amazed if the judge even paid attention to that, because it’s not relevant.”
Sanders alleges GTL kept the phone system problems a secret to protect the company’s financial bottom line.
“Disclosures would damage the reputations of GTL and key employees. It could also bring financial damage to the company,” the motion reads.
It adds: “When weighed against these concerns, the price of transparency and accountability was simply too steep — even though the cost was the right of incarcerated defendants to have confidential, unrecorded communications with their counsel.”
“There was no reason from GTL’s perspective to let other counties know about its dirty laundry in Charlotte and Pinellas, even if sharing what happened or simply addressing the underlying issues could stop illegal recording in those places,” Sanders’ motion reads.
To begin fixing the situation, “GTL needed to begin the process by contacting every government entity” using the system, “which undoubtedly would have been a huge undertaking” as “over 325 county and regional jails” used the problematic phone system, according to Sanders’ motion.
Sanders continues: “If law enforcement wished to have access to privileged calls and were willing to keep it to themselves, as they did in Orange County, that was perfectly acceptable to GTL. The company was undisturbed by its role in violating the rights of inmates oblivious to what was occurring.”
Sanders said in May that it was “very much unclear” how many of his office’s clients’ are connected to the phone recording scandal.
“Myself and others believe that likely hundreds of thousands of calls to our office were recorded,” he said at the time.
The jail phone recordings have become a focus for Sanders in the defense of his client Justin Weisz, who’s accused of breaking into a home and stealing a car.
Another defense attorney, Joel Garson, discovered calls between his client, Joshua 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, currently awaits trial for attempted murder in connection with a 2016 shooting in Costa Mesa.
Of the 1,079 phone calls that were improperly recorded, at least 58 of those calls were played, downloaded or burned to a disc by jail personnel. Some of those calls were turned over by the department to other law enforcement agencies.
Elsewhere in California, improper law enforcement recording of inmates’ protected conversations has led to reduced and dismissed charges against criminals, including a reduced sentence in a murder case.
Orange County grand jurors in a May 31 report claimed the county Sheriff’s Department lacked sufficient measures in place to prevent the illegal phone call recordings.
But the Grand Jury also commended the Sheriff’s Department for handling “this situation professionally, with transparency and with good intentions. There was no evidence that recorded phone calls were systematically provided to the (Orange County District Attorney’s Office).”
The report goes on to say “This is a complicated issue and, to the (Sheriff’s) and the County’s credit, they are tackling it head-on and may easily become leaders in the State and the United States in finding the most desirable solution for providing legally privileged communications to inmates.”
Sanders criticized grand jurors at the time for not looking further into Superior Court evidence and testimony last year.
The 2018 testimony revealed that Sheriff’s Department and District Attorney officials knew since at least 2015 about privileged attorney-inmate phone calls being recorded in the county jails.
Sanders said the grand jury findings “ignore completely the fact that (the) Sheriff’s Department concealed that its personnel were listening to attorney client calls for more than three years — with the Grand Jury embarrassingly suggesting that the agency could now become national leaders in how to respond to these issues.”
Grand Jury Foreperson Brigit Sale declined to comment at the time on anything beyond what’s in the report, saying in an email that it “contains all the information the Grand Jury intends to present on this topic.”
The 2018 sworn testimony came after county officials previously maintained they had only learned about the recording problems in July 2018, and after November court proceedings revealed that over 30,000 inmate calls to their attorneys were recorded.
The testimony raised questions about why county officials apparently did not examine the issue further to potentially stop the recordings of protected calls that started in January 2015, when a computer upgrade by GTL caused recordings of attorney-client calls despite their designation on a “do not record” list.
The 2018 testimony also called into question what the Sheriff’s Department officials didn’t tell county supervisors when seeking a renewal of the jail phones contract in October 2017.
In November last year, the county Board of Supervisors moved to extend GTL’s contract for another year, despite calls to change jail phone vendors by some supervisors at the time, including then-supervisor and current District Attorney Todd Spitzer.
The contract expires Nov. 24 this year, according to Sheriff’s Spokeswoman Carrie Braun.
In the meantime, Sheriff Don Barnes said in a statement this month that the department is developing a request for proposals by other potential contractors “for an inmate telephone system that will have enhanced programming and security.”
Sanders is also known for discovering the illegal use of jail informants by Orange County law enforcement, a pattern referred to as the jailhouse snitch scandal.
Brandon Pho is a Voice of OC intern. Contact him at firstname.lastname@example.org or on Twitter @photherecord.