D.A.: No need for judge to bar unlawful recording
Alameda County’s top prosecutor says there’s no need for a judge to bar the county sheriff ’s office from unlawfully recording conversations between suspects and their attorneys, even after officials said video footage showed such a violation.
In a motion filed Friday, District Attorney Nancy O’Malley pushed back on Public Defender Brendon Wood’s request for a standing order against the department, saying it would paint all deputies with the same brush.
“It assumes that all officers will break the law unless there is a lawful order not to break
“You agency can’t of 1,600 condemn an people based on the actions of one person.” Sgt. Ray Kelly, sheriff ’s spokesman
the law,” O’Malley’s motion argued.
It is a felony in California for a third party to record attorney-client privileged conversations.
But earlier this year, public defenders learned that a sheriff ’s office sergeant recorded a meeting between a juvenile detainee and his attorney while the boy was at the Eden Township Substation in San Leandro. The substation contains at least one room where investigators interrogate suspects.
Public defenders said they received the recording of the boy with his attorney through evidence discovery in the case. They also received body-camera footage of a conversation between Sgt. James Russell and Lt. Timothy Schellenberg, in which Russell suggested the surreptitious recordings were common practice.
“What we’ve done is, like, well, we’ve had these recordings,” Russell said at one point in the video, which was ob-
tained by The Chronicle. “We have not yet listened to any of the recordings with what they said to the attorney.”
Woods last month asked a judge to direct an order against the entire agency.
“In our view, the best way to end this pernicious and potentially endemic practice is to issue a standing order barring the Sheriff ’s Department from eavesdropping upon privileged communications between defendants and their attorneys,” the public defender wrote.
A district attorney’s office spokeswoman told The Chronicle the agency was reviewing all juvenile cases submitted by the Sheriff ’s Office this year to determine if any were compromised. The spokeswoman said the office will decide later whether to file charges against Russell.
Prosecutors have not released the results of their review, but Friday’s court filing suggests they believe the problem to be limited in scope. This would support the stance of Alameda County Sheriff Gregory Ahern, who described the recording as an “isolated incident.”
“You can’t condemn an agency of 1,600 people based on the actions of one person,” Sgt. Ray Kelly, a sheriff ’s office spokesman, said Tuesday.
“We have addressed it internally, and we are still addressing it,” he said of the recording. “There is a criminal investigation by the district attorney into the involved person, and we see no other evidence or reason to believe that this is an agency-wide practice.”
A spokeswoman for the district attorney’s office declined to answer specific questions Tuesday and said the issue was still under investigation.
The matter is scheduled for a hearing on Friday.