Pa. high court takes local case on recording inmate jail visits
Pittsburgh Post-Gazette
The Pennsylvania Supreme Court has entered the legal battle over whether prosecutors can use a recorded Allegheny County Jail conversation as evidence in the case against an accused rapist.
On Wednesday, the state’s highest court said it will hear an appeal by James T. Byrd, 39, who is charged with raping an unconscious woman.
Byrd has been trying to suppress a recorded jailhouse conversation with the alleged victim in which authorities say he described the sexual assault in graphic detail. At issue is whether he knew he was being recorded.
In its order taking up the appeal, the Supreme Court said it will consider whether prosecutors must prove an inmate is aware that he’s being recorded and whether the state Superior Court erred in concluding that Byrd knew.
Prosecutors have a recording of a conversation between Byrd and the woman, who visited him at the jail after the incident. During the February 2016 conversation, he described the alleged assault to the woman, referring to medication she had taken that made her incoherent and sedated, and said, “And you was asleep and didn’t even feel it.”
Byrd’s attorneys argued that the evidence — and the case — should be thrown out because the recording violated his constitutional rights and the state Wiretap Act.
Allegheny County Common Pleas Judge Donna Jo McDaniel agreed, basing her decision on a previous state Supreme Court case out of Clinton County that found that equipment used to facilitate jail visits — both the visitor and inmate speak into a handset and are separated by a clear partition — is not a telephone, and therefore not subject to the wiretap law’s exception for jail phone calls.
On appeal, however, Superior Court overturned Judge McDaniel and said the evidence could be used because Byrd was given a warning — through a recorded message played when the handsets are picked up — that the conversations were being recorded. To bolster its contention that Byrd knew he was being recorded, the court noted that during a 2015 conversation with a visitor, Byrd made a threat and said, “… I’m gonna say it on the phone. I don’t give a [damn].’”
As a result, Superior Court reasoned that the recording was legal because it fell under the wiretap law’s mutual consent exception.
In asking the Supreme Court to consider the case, Byrd’s attorney, Brandon Herring, wrote that the jail could deal with the issue of consent simply by requiring inmates to sign a form that informs them that conversations during visits are recorded.
Byrd was initially arrested in February 2015 after McKeesport police were called for a report of a woman being threatened.
Officers took him into custody and found a handgun on the seat of his truck, 20 stamp bags of heroin in a box on the passenger seat, a bulletproof vest and two cell phones.
The initial drug and gun prosecution has since been taken over by the U.S. Attorney’s office.
In October, Byrd was indicted and now faces charges in U.S. District Court for possession of a firearm by a convicted felon, possession with intent to distribute and carrying a firearm in furtherance of a drug trafficking crime.
On Tuesday, U.S. District Judge Cathy Bissoon appointed Robert Wettstein to complete a psychiatric examination of Byrd following a hearing last month.
At that hearing — based on Byrd’s request to represent himself in federal court — Judge Bissoon said the defendant refused to be sworn or answer any of the court’s questions and refused to participate meaningfully in the proceedings.
“Instead, defendant angrily unleashed a variety of vulgarities, insults and non sequiturs,” Judge Bissoon wrote.
Dr. Wettstein’s report is due by Dec. 2, and a hearing will be scheduled thereafter.