Is This Call Being Recorded?

Well it looks like somebody got caught with their hand in the cookie jar while I was away, as our good friend Jose Baez filed an eight paragraph Motion for Protective Order Regarding a Telephone Recording of Robin Lunceford.

And since I had nothing better to do after a week long vacation, I thought it would be nice to annotate and analyze the eight paragraph motion for my unfaithful readers to help them understand what really transpired between Jose Baez and Robin Lunceford.

Annotations of the Motion

Paragraph 1:

He received a phone call from an ex-inmate who stated she had a friend who conspired with Maya Derkovic to create a lie to possibly benefit from her knowing Casey Anthony at the Orange County Jail. The unknown caller informed the undersigned that she would be calling later that evening.

Basically, Jose received a phone call saying a current inmate would be calling him (collect most likely) that evening with information about Maya Derkovic. (Jose likely soiled his underwear from sheer excitement.)

Paragraph 2:

Shortly thereafter, the undersigned counsel was advised by his secretary after hours, that Robin Lunceford was attempting to reach him. The case was transferred to the undersigned counsel cell phone, upon which a conversation with the prospective witness occurred.

Considering Jose failed to list his secretary’s name and I don’t know any secretary who works after hours, I suspect what really happened is that when Robin Lunceford called, his after-hours answering service answered (almost every solo lawyer uses one – I use a company called Signius) and forwarded the call to him. (Personally, for Jose, I hope my suspicion is incorrect, because lack of candor with judges and misrepresentation are big no-no’s for lawyers.)

Paragraph 3:

While it became known that Robin Lunceford was calling from a corrections Institution, the undersigned counsel was never made aware that the call was being recorded by either Robin Lunceford or the standard recording that is usually played when receiving a call from a Correctional Institution.

Even though he admits to knowing the phone call was from an incarcerated prisoner, he claims ignorance it could be recorded because he never heard the “standard recording” telling the recipient the call originated from a prison and was subject to being recorded.

Well duh! His answering service – cough, cough – I mean secretary heard the “standard recording” before forwarding it to him (How else could she have answered). And the secretary’s knowledge of the recording would be imputed to him.

It is also possible that a Three-Way call was initiated by Robin Lunceford, but since Jose admits to knowing the call originated from a prisoner, he still lacks a reasonable expectation of privacy.

Paragraph 4:

As the Court may already be aware, all calls are not recorded when coming from a Correction Institution. Many times inmates have access to telephones specifically designed for contact with attorneys and sometimes counselors allow inmates to make non-recorded calls, and on certain occasions inmates obtain contraband cell phones.

Well looky here, there happens to be a Florida regulation that specifically regulates the circumstances by which a State Prisoner (as opposed to a person housed in a county jail) can use the telephone. See Florida Administrative Code 33-602.205 “Inmate Telephone Use” This regulation states that all calls will be monitored. And while there is an exception for calls to attorneys, the exception does not apply to Jose Baez per subsection (3).

With that said, it is true that I too have received phone calls from inmates using the chaplain’s office, only come those call have come from inmates in a county jail – never in a prison

Paragraph 5:

Among other topics discussed the undersigned was made aware that Robin Lunceford along with Maya Derkovic conspired with Robin Adams to possibly benefit by lying to the State about Casey Anthony. Maya Derkovic’s apparent motivation was to receive a transfer to another institution for her information. Subsequent to this conversation Maya Derkovic was transferred to another correctional institution in Broward County.

Again, DUH! Apparently he did not read my blog posts. (See An Open Letter to Web Sleuthers Everywhere… and Of Rats and Women)

Paragraph 6:

The Defense has just been advised by Assistant State Attorney, Linda Drane Burdick that the State intends to release a recording of this telephone conversation in discovery.

Oh what a tangled web we weave, When first we practise to deceive! More contemporarily quoted as Oh Sh!t. (Jose likely soiled his underwear from sheer fear of what he said on the tape.)

Paragraph 7:

The Defense contends that this conversation is not only protected by the work product doctrine it further argues that it would be a third degree felony pursuant to 934.06.

See below: “Analysis: Work Product.”

Paragraph 8:

The undersigned requests that the State not listen to the illegally recorded statements as the use and disclosure of the unlawfully intercepted conversation would be a third degree felony pursuant to F.S. 934.03. Additionally, F.S. 934.06 specifically states “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived there from may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter.

See below: Analysis: F.S. 934.06 “Interception and Disclosure of Oral Communications Prohibited.”

Analysis: Work Product

Our good friend Jose Baez first seeks the court’s protection from the disclosure by the State of the recording between him and Robin Lunceford by claiming the conversation was “Work Product.”

The discoverability of Work Product information is addressed in Florida Rule of Criminal Procedure 3.220(g)(1) (Titled Work Product), which states: “Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney or members of their legal staffs.”

Arguably, a taped conversation between Jose Baez and Robin Lunceford could constitute “record or correspondence.” But to understand if the Work Product “privilege” applies to Jose Baez’s conversation with Robin Lunceford, it is important to understand the policy reasons behind protecting Work Product of lawyers.

And interestingly enough, none other than Justice Thomas D. Sawaya, a judge who sits on the Fifth District Court of Appeals (the court that will handle any appeal related to the Casey Anthony case) wrote the leading primer on the Work Product privilege in Florida, titled appropriately enough: “The Work Product Privilege in a Nutshell” The Florida Bar 67-AUG Fla. B.J. 32 (1993).

The article states that ”the primary policy objective of the work-product doctrine is to preserve the effective assistance of attorneys and others employed to help prepare a case for trial. By maintaining the privacy of communications between client, attorney, and others employed in preparing for litigation—especially privacy in the development of legal theories, opinions, and strategies-the doctrine fosters the effectiveness of legal assistance upon which our adversarial system of justice depends.”

However, the article goes on to point out that “voluntary disclosure of privileged matter to a third party generally waives the privilege.”

What this means is that communications between the client, attorney, and others employed in preparing for litigation are privileged as Work Product, however the privilege does not apply to communications with people not employed in preparing for litigation – i.e. Robin Lunceford or maybe even an after-hours answering service?

So it seems clear that the Work Product argument advanced by Jose Baez was simply a shot in the dark with no legal basis.

Analysis: F.S. 934.06 “Interception and Disclosure of Oral Communications Prohibited.”

For those of you unfamiliar with Section 934.06, Florida Statutes, it basically says that any surreptitious recording of a conversation obtained in violation of Section 934.03, Florida Statutes, cannot be used in any legal proceeding.

Section 934.03 then goes on to list a series of circumstances under which the “Oral Communication” of a person can or cannot be surreptitiously recorded. However these circumstances are only looked to once it is determined that the communication is an “Oral Communication” as defined by Section 934.02, Florida Statutes.

Section 934.02(2) defines an Oral Communication as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.”

Chapter 934 (Florida Wiretapping Act) codifies Article 1, Section 12 of the Florida Constitution, which states:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated.

…

This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.

Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.

And as you can imagine, the Florida Supreme Court has had many opportunities to interpret Article 1, Section 12, Chapter 934, and the Fourth Amendment and have concluded that “under both the Fourth Amendment and the Florida wiretapping act [1] a speaker must have an actual subjective expectation of privacy and [2] our society must recognize that the expectation is reasonable for the oral conversation to be protected.” See Jackson v. State, 18 So. 3d 1016, 1030 (Fla. 2009).

With this as our starting point lets examine Jose Baez’s situation.

Did Jose Have an Actual Subjective Expectation of Privacy?

Even if were true that Jose Baez was never made aware that he was being recorded, the real question is whether he had an actual subjective expectation of privacy.

Considering that Jose Baez is a lawyer and he does not dispute he knew that Robin Lunceford was calling him from prison, it would defy logic for him to reasonably believe that any conversation with a person in a Florida state prison was not being recorded.

Moreover, even if we were to realistically believe she called him from a contraband cellular phone (this is the last thing I would ever assume), he should know that her doing so constitutes a crime on her part. Thus any recording made of her when committing this crime is not protected under Chapter 934.

A more likely scenario though is that she called him three-way and this is why neither his secretary, nor he heard the “standard recording” informing him he was being recorded.

However, because he is a lawyer, he should “subjectively” know that this is the most likely way he was called and should know that there was a third person on the line – thus he had no expectation of privacy between himself and Robin Lunceford.

Finally, even if we were to believe that Jose Baez “personally” never heard any “Standard Recording” the real question is whether the person who answered the phone call originally i.e. his “secretary” heard the recording. If she did, but failed to advise him of this, he cannot be heard to complain because his assertion of the Work Product privilege imputes her knowledge of the circumstances of the call to him. (Ain’t life a bitch.)

And this is why I think he so vaguely drafted his motion as to what he “personally” heard or knew. Because chances are the person who answered the call heard the “Standard Recording” – but just didn’t tell poor old Jose.

Even if there was an Expectation of Privacy, Does Our Society Recognize it as Reasonable?

Even assuming that Jose Baez had a subjective reasonable expectation of privacy, the real question is whether our society is prepared to recognize his expectation as reasonable considering he was talking to a person whom he knew was a convicted felon, in prison, and who was not his client.

Unfortunately for Jose Baez, the Florida Supreme Court has addressed this issue time and time again; and each time they have specifically held that “society would insist that the prisoner’s expectation of privacy always yield to what must be considered the paramount interest in institutional security.” State v. Smith, 641 So. 2d 849 (Fla. 1994);  See Jackson v. State, 18 So. 3d 1016, 1030 (Fla. 2009) (“The interest in institutional security allows jailhouse conversations to be monitored.”). See also McWatters v. State, (Fla. 2010) (An inmate has no reasonable expectation of privacy in a telephone communication from jail where the inmate is warned that all calls are monitored or recorded.) (For those of you paying attention, McWatters is also the case I cited in “911, What’s Your Emergency?” and the case Chief Judge Perry specifically cited in admitting two of the three 911 calls, Déjà vu.)

So no, our society would not be willing to recognize Jose Baez’s claimed “subjective expectation of privacy” as reasonable. As a result he is not entitled to have the court grant his protective order and prevent the State from releasing the taped conversation.

Ironically though, even if Ninth Judicial Circuit Chief Judge Perry were to throw Jose Baez a bone and grant him some relief, Judge Perry does not have jurisdiction over the Lowell County Annex located in Marion County of the Fifth Judicial Circuit.

Thus a public records request there would require the Lowell County Annex to release any phone calls of Robin J. Lunceford from May of 2010. (hint, hint)