Lawsuit Says Hudson County Jail Recorded Calls With Attorneys, Gave This Info To Prosecutors

Everyone’s aware (or should be) that all calls made from jail are monitored. Not all calls are recorded. There are exceptions, with the biggest being the one for calls made to attorneys representing jailed people.

Those are completely off-limits. These are privileged communications that cannot be monitored or recorded by the government. And yet, it seems to happen disturbingly frequently.

Part of the problem is that, in most cases, the monitoring of calls is automated and handled by third parties. The third parties make good money on every outgoing call. And if jail officials aren’t staying on top of things, everything gets collected. Once it’s collected, there’s really no reason to not take a listen to attorney-client calls (I mean, other than the rights violation). All you have to do then is just not get caught doing it.

For Securus and its incarceration customers, “getting caught” happened. A massive trove of hacked data included 14,000 recordings of calls between prisoners and their legal reps. Securus settled the inevitable class-action lawsuit five years later, covering $840,000 in legal fees and shelling out up to $20,000 to each affected inmate. It could easily afford to buy its way out of this since it has been known to charge upwards of $14 a minute for calls using its service.

The latest lawsuit to allege illegal recording of privileged communications has the potential to be another class-action lawsuit. It has been brought by a man currently serving time in a New Jersey correctional facility, who claims his attorney calls were not only recorded, but their content used against him by state prosecutors. (NJ.com was the first to report on this lawsuit, but while it can apparently erect a paywall, it apparently doesn’t have the capability to embed a copy of the lawsuit, much less link to it. So, Gothamist gets the leading link and the blockquotes.)

A man who was incarcerated in Hudson County, New Jersey, alleges jail officials and prosecutors there illegally listened to private conversations he had with his attorney while awaiting trial.

Yursil Kidwai says in a federal class-action lawsuit that jail officials secretly monitored phone conversations between him and his lawyer, which are privileged under New Jersey law, and then prosecutors used information shared in those calls to help build a sexual assault case against him. 

The tech for recording calls en masse has existed for years. Plenty of players in the jail tech market have capitalized on this to extract exorbitant per-minute fees from a truly captive market. Correctional facilities not only benefit from the off-loading of this task to third parties, but they often directly benefit from the per-minute extortion racket by receiving a cut of every dollar generated by companies like Securus.

No third-party provider is being sued here. Just several facility officials and government prosecutors. As was stated above, listening in on privileged calls is super-easy. All that’s needed to get away with this is to not do anything stupid.

But everyone involved in this violation of rights screwed up, at least according to Yursil Kidwai’s lawsuit [PDF].

[Kidwai] learned of Defendants’ unconstitutional conduct only when Defendant HCPO [Hudson County Prosecutor’s Office] inadvertently produced in discovery copies of [HCPO Detective Ashley Rubel’s] memorandum to [Assistant Chief Hudson County Prosecutor Jane Weiner] and [HCPO Detective Sergeant Leslie Murphy] digesting the substance of Plaintiff’s attorney-client telephone calls.

At best, this could be charitably described as “sloppy.” This opens up the jail and the prosecutor’s office to all sorts of speculation, if not actionable claims. The inmate also claims other inmates have experienced the same sort of forbidden snooping, although the other person named was not so fortunate as to have been the beneficiary of an unforced error.

Since this is a proposed class-action suit, Kidwai is not seeking suppression of this evidence or a reversal of his conviction. (Reports suggest the case against Kidwai was so strong prosecutors definitely didn’t need to use anything obtained illegally, which makes you wonder why they chose to do so.) Instead, he’s seeking a court order blocking the HCPO and correctional facility from doing something they’re already not allowed to do. He’s also seeking unspecified monetary damages, but if it’s true this conviction wasn’t predicated on illegal monitoring of calls, it seems unlikely he’ll be able to demonstrate any monetary loss from these illegal actions.

Without a doubt, this sort of thing is common. What’s uncommon is the government getting caught doing it. Discovery — should the case get to that point — might prove to be very interesting.