Sheriff ’s Office’s invasive recording
Youth suspect, attorney targets in Alameda County
The Alameda County Sheriff ’s Office illegally recorded at least one confidential conversation between a juvenile crime suspect and his attorney, the county public defender’s office said Monday, and an exchange between two sheriff ’s officials captured on video suggests that the practice may have been routine.
The allegations that the agency made recordings that violated the attorney-client relationship were laid out in a motion filed Monday in Alameda County Superior Court by the public defender’s office, and are supported by a body-camera video obtained by The Chronicle.
In the video, a sheriff ’s sergeant appears to say he’s made a habit of recording privileged conversations at the Eden Township Substation in San Leandro since January.
The revelations have prompted the Sheriff ’s Office to open an internal investigation into the matter. Meanwhile, the Alameda County district attorney’s office has thrown out the case
that involved the allegedly illegal recording of a juvenile, and is reviewing every juvenile criminal case submitted by the Sheriff ’s Office this year, according to a spokeswoman.
Both the body-camera video and the video of the juvenile with his attorney, who were said to be in a room at the Eden Township Substation, were turned over by prosecutors to the public defender’s office as evidence in a recent criminal case, court documents show.
Secretly recording a conversation between a person in custody and the person’s attorney is a felony under California law. The district attorney’s office will investigate whether to file charges in the case, an agency spokeswoman said.
The body-camera video was recorded March 15 from the point of view of Sgt. James Russell, who has worked for the Sheriff ’s Office for more than 20 years, according to his LinkedIn profile.
Russell is heard discussing the video recording of a juvenile in an attempted robbery case — the one that was later thrown out — with Lt. Timothy Schellenberg, who oversees the sheriff ’s investigations unit out of the Eden Township Substation.
Attempts to reach Russell were not successful Monday. Schellenberg declined to comment through a department spokesman.
Public Defender Brendon Woods on Monday asked a Superior Court judge to order the Sheriff ’s Office to bar “eavesdropping and illegal recording of privileged communications” between attorneys and their clients.
“It shouldn’t just be concerning to me as a public defender; it should be concerning to everyone as a citizen — that the government has taken on this position, or asserting some sort of authority, where they can violate people’s rights,” Woods told The Chronicle.
A judge scheduled a hearing on the matter for Friday.
Sgt. Ray Kelly, a spokesman for the Sheriff ’s Office, said Sheriff Gregory Ahern is aware of the footage and is “taking this very seriously.”
“As result of this, we have retrained and spoken with every officer assigned (at the substation), and made sure that they are up to date on the policy and the fact that attorney-client conversations are privileged and not to be recorded,” Kelly said.
Kelly said department policy clearly covers issues of attorney-client privilege. He suggested that the issue is limited in scope and stemmed from confusion about a new state law requiring that juvenile suspects be given the chance to consult with an attorney.
At the beginning of the body-camera video, Russell says he needs to “bring the public defender back” to the suspect, who is a juvenile.
Schellenberg asks, “Do you record that, no?”
Russell responds, “It’s not admissible, but I — I record it.” He then jokes about the possibility of the public defender sexually assaulting his own client. “What if he decides to molest him in there? Then we’re on the hook.”
A few seconds later, Schellenberg asks how the recorded conversation between an attorney and his client isn’t considered privileged information.
“Well, it is, but like it just doesn’t get admissible,” Russell says, referring to evidence that can be admitted into criminal court proceedings in front of a jury. “Like, when we record it, it’s just not admissible. We don’t have to record the phone call ...”
Later in the conversation, Schellenberg asks what happens if investigators listening to a recording hear a suspect admit to something that aids an investigation. Evidence obtained by police illegally typically isn’t admissible in court.
Schellenberg suggests a scenario where this could occur, like finding a gun in a backyard. Russell responds that the evidence would probably be deemed “inevitable discovery.”
Inevitable discovery is a legal exception to the rule that illegally obtained evidence is not admissible. It allows the admission of evidence that eventually would have been discovered legally by police.
Russell tells Schellenberg that investigators haven’t yet listened to the recorded conversations between juveniles and their lawyers.
The public defender’s office believes the Sheriff ’s Office recorded the conversation between the juvenile crime suspect and his attorney with a video system ordinarily used to record interrogations.
Woods, the public defender, said he’s particularly concerned that the practice of recording privileged meetings could be widespread.
The Alameda County Sheriff ’s Office patrols unincorporated areas of the county, runs its jails and provides security for its courts. This means numerous conversations between in-custody clients and their attorneys happen under the control of the Sheriff ’s Office. This includes jail meeting rooms, jail phones and courthouse holding cells.
One of the most common places for communication between attorneys and detained clients is Santa Rita Jail in Dublin, which holds about 4,000 inmates.
“We have no way of telling whether those communications are recorded or not,” Woods said. “They’re not supposed to be — legally not supposed to be — and we expect that they’re not. But based on what’s been revealed to us by Sgt. Russell’s conduct, we have to be on guard that it can be occurring anywhere at any time.”
Woods said he’s seen no evidence to suggest that the district attorney’s office was aware of the recordings or used them to its advantage in court, and he commended prosecutors for handing over the body-camera recording as evidence in discovery.
In an emailed statement, district attorney’s office spokeswoman Teresa Drenick said the office immediately dismissed the case involving the allegedly illegal recording when the agency became aware of it.
“We have pulled all juvenile cases, whether charged or uncharged, that have been submitted by the Alameda County Sheriff ’s Dept. since the start of this year,” Drenick wrote. “Our review of the matters is ongoing. Upholding the Constitution is the highest priority of this office, including protecting the attorney-client privilege. We will complete our investigation and make any decisions about potential criminal conduct at that time.”
As of this year, California law prohibits police from interrogating children 15 and under before the youth has consulted with an attorney.
Because of this law, Kelly said, defense attorneys frequently visit the Eden Township Substation to consult with their juvenile clients.
In part of the body-camera recording, Russell also discusses installing a phone line so juveniles can talk to their attorneys.
“Why the recorder was left on is the big question here, and that’s what we need to address,” Kelly said. “Moving forward, we can assure people that the recorders will be turned off any time an attorney meets with a client.”
Kelly said the Sheriff ’s Office was not seeking to hide the recordings. He said Woods and Ahern have been in correspondence about the video.
Kelly declined to comment on any potential discipline for the officers.
David Levine, a professor at UC Hastings College of the Law, said clients and their attorneys must be able to trust that their conversations aren’t being monitored.
“When the attorney says, ‘This is protected; this is confidential’ ... if the client can’t trust that, then the client won’t be as forthcoming,” Levine said. “And without the exchange of information, the attorney is hamstrung in providing appropriate legal advice.”
This isn’t the first time an Alameda County official has come under fire for similar conduct. A county prosecutor was placed on administrative leave in 2012 after it was revealed in court that she allegedly ordered the recording of a conversation between a murder defendant and a defense expert at Santa Rita Jail.