NEW ORLEANS (AP) — A watchdog group is calling on New Orleans jail officials to do more to assure that inmates can have private conversations with attorneys.
The Orleans Parish Sheriff's Office, which oversees the jail, takes issue with the findings in Monday's report by Court Watch NOLA, a nonprofit formed after Hurricane Katrina hit the city in 2005 to oversee court reforms.
The group’s report says attorneys wanting to make sure their calls aren't recorded face a time-consuming process. It says that during the coronavirus pandemic, the Sheriff's Office began letting attorneys from the Orleans Public Defenders office have unrecorded phone calls with jailed clients. “However, many private defense attorneys have waited to receive the same right, some times for over a year,” the report said.
“Any suggestion that the process is difficult or burdensome is incorrect," Sheriff Marlin Gusman said in an emailed statement. The statement said 677 privileged calls were made by inmates in May.
The Sheriff’s Office response includes an email exchange in which an attorney asked to be part of the privileged call program and was enrolled within hours.
Attorneys wanting to be part of the program have to provide a notarized affidavit stating that third parties won't be part of the conversation. Court Watch NOLA says the requirement is unnecessary, but the Sheriff's Office says such an affidavit isn't hard to produce and is needed to ensure that people who aren't covered by attorney-client privilege, including potential court witnesses, aren't on the call.
The Sheriff's Office also takes issue with the watchdog group's contention that more should be done to document any attorney-client calls that do get recorded so that they are not used by prosecutors.
“To the extent you are referring to calls made to attorneys who have not enrolled in the privileged call program, those calls are not privileged, since those calls contain a clear warning that the calls are being recorded,” Sheriff's Office attorney Blake Arcuri said in a letter to the group.
Judson Mitchell, a criminal defense attorney and a professor at Loyola University in New Orleans’ College of Law, said he has had difficulties getting unrecorded phone calls with inmate clients for 20 years under two sheriffs' administrations.
“It’s a difficult thing to represent somebody when you can’t talk to them on a regular basis or when you have to basically take out an afternoon to go have a 5-minute conversation in person about some minor detail of the case,” Mitchell said.
The Court Watch Nola report said Mitchell waited more than a year to get permission to talk with clients on the phone without being recorded. Arcuri, in a telephone interview, attributed the delay in getting Mitchell permitted to have unrecorded calls with clients to an email problem that has been addressed.
Mitchell, meanwhile, said Gusman's office has been more cooperative recently.
“I'm very pleased,” he said.
Still, his phone conversations with inmates, by choice, won't be detailed, just in case someone is listening.
“I think that many lawyers distrust it anyway,” Mitchell said. “I don’t think going forward that even now I’ll be having detailed or significant conversations with clients about their cases on the phone. I think those will still be in person."