Thursday, September 30, 2010

Surreptitious audio recordings.

You know, the kind that are made without people's consent?  Say for example the kind made without everyone's consent when some attorneys or cops are standing around discussing sensitive issues regarding a case they're working on or the kind that's made when a prosecutor has a body wire on someone who's talking to their attorney in the privacy of their attorneys office?  You get the drift don't you?

We've discussed several of these surreptitious recordings in the past, let's start with illegal audio recordings of Pastor Gaston Smith's interview with Assistant State Attorney Scruggs and a police detective.  From Francisco Alvarado's story in the Miami New Times...
Late Friday, at 9:05 p.m., Miami-Dade Judge Beatrice Butchko dealt a serious blow to state prosecutors' case against a popular pastor in Miami's black community.  Butchko ruled Assistant State Attorney Richard Scruggs cannot use digital recordings of two interviews with Rev. Gaston Smith. They were made months before the clergyman was indicted for stealing more than $10,000 in county grant money. 

The reason: Smith, his lawyer, and Scruggs did not know the cop who sat in for both interviews was recording them. 

"That is inexcusable," Butchko said. "It cannot happen ever. So those tapes are gone."
Those recordings and the fact that the prosecutor didn't immediately notify the defense that the tapes existed got the judge so worked up that she said the following...
"The way you handled this disclosure was very unprofessional," Butchko railed. "As soon as you found this out, not only did you need to call them, you needed to draft a letter explaining exactly what happened and the purpose of the tape and the meaning of it, to avoid an appearance of impropriety... That didn't happen." 

You all remember boxer short wearing federal prosecutor Sean Cronin don't you?  Prosecutor Cronin seems to have a soft spot for audio recordings as well, from the Federal Criminal Defense blog...
In addition, without informing the Department of Justice, the court or the defense, the prosecution also approached two fact witnesses and directed them to tape record their communications with defense counsel. The witnesses’ recordings of defense counsel without counsel’s knowledge were revealed to the defense only when one of the witnesses testified that he possessed a recording of a conversation with counsel during trial. Despite this disclosure, the defense’s motion alleges that it was not until one week later when a member of the prosecution team told a member of the defense team that he had been recorded by the witness without his knowledge.
After being informed of this fact, the district court ordered the government to prepare sworn affidavits regarding what had occurred. The prosecution submitted affidavits admitting that the U.S. Attorney’s Office had authorized the DEA to tape record communications between witnesses and the “defense team” without court authorization. A DEA agent subsequently instructed two government witnesses “to record any future conversations with members of the defense team,” and at least three records were made of conversations with defense attorneys or investigators.
Whoops.  That mess got the judge worked up as well, take a look...
Judge Gold found that AUSAs Cronin, his co-counsel, Andrea Hoffman, and his supervisor, Karen Gilbert, had failed to perform their duties and had engaged in a collateral witness tampering investigation motivated by Cronin’s personal animus against the defense team.
In addition to assessing attorney’s fees and costs Judge Gold entered a public reprimand against the three AUSAs and enjoined the United States Attorney’s Office from engaging in witness tampering investigations of defense counsel without first bringing such matters to his attention.
So what happened?  With all the noise surrounding these surreptitious recordings, why hasn't anyone been reprimanded or charged?  At the very least, why hasn't the bar taken any action against the lawyers involved?  I'm constantly reminded that making audio recordings of this nature without consent is illegal, yet we've seen several examples of people making and using these types of recordings without any significant consequences (that is aside from the government having to pay Dr. Shaygan $600K++).  So what if we had some audio recordings that exposed some of the people involved in one of the mortgage fraud cases we discussed behaving inappropriately, maybe even illegally?  What if that person was an attorney or worse an assistant state attorney?  God, that would be awful wouldn't it?   

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