Prosecutors Eavesdropped on 120 Confidential Defense Calls in Kentucky Death-Penalty Case

A Kentucky capital defendant has moved to dismiss all charges against him or to bar the death penalty in his case as a result of evidence that prosecutors repeatedly eavesdropped on privileged attorney-client telephone calls over the span of a year. Lawyers for James Mallory (pictured) have filed a motion to dismiss the case for gross prosecutorial misconduct, alleging that prosecutors listened to recordings of 120 prison phone calls between Mallory and members of his legal team, totaling more than 24 hours of confidential conversations. “Given that it is clear from the calls that the conversations were privileged,” defense attorneys Eric Eckes and Greg Coulson wrote, “it is difficult to fathom another purpose for the Prosecutor to continue to listen to the calls for any reason other than to gain confidential, privileged information.”

The motion alleges that prosecutors committed “a serious and shocking violation of basic ethical standards” when they eavesdropped on conversations between the defense team and Mallory that were recorded by the Louisville Metro Corrections facility. The recorded phone conversations included privileged discussions of witnesses and defense strategy. Jefferson Commonwealth’s Attorney Tom Wise said that prosecutors can listen to prisoner calls, but “have an ethical obligation to stop listening” when they realize that the prisoner is speaking with their attorney. However, Mallory’s lawyers said “it defies logic to suggest the Prosecutor did not intentionally invade the attorney-client relationship based on the sheer volume of calls that were repeatedly listened to.”

Metro Corrections, where Mallory has been held awaiting trial since 2012, said that there is a special line for attorney calls, and that other calls play three warnings that they are being recorded. Steve Durham, a spokesperson for the jail, claimed that calls that are not made on the protected line are not privileged and can legally be recorded. Eckes dismissed the prison’s assertion that lawyers waive attorney-client privilege by talking on a monitored line, saying “I don’t think that would carry weight with an actual court.”

In the motion to dismiss the charges, Eckes and Coulson wrote that Mallory’s case “has involved many hard to fathom (and perhaps unprecedented) twists and turns. There has been ample behavior in this case that should not be condoned. It is time, with this new flagrant violation of Mallory’s rights coming to light, for drastic action—this case must be dismissed.” As an alternative remedy, the lawyers argue that the Jefferson Commonwealth’s Attorney’s office should be removed from the case and replaced with prosecutors from another county and the Commonwealth should be barred from pursuing the death penalty.

The Kentucky incident is the latest in a string of prosecutorial invasions of the attorney-client privilege. In October 2017, the entire civilian legal team resigned from the Guantánamo military tribunal proceedings in the U.S.S. Cole bombing case after listening devices were found in what were supposed to be confidential attorney-client meeting rooms. Chief Defense Counsel for the Military Commissions Defense Organization, Brigadier General John Baker advised the war-court capital defense attorneys in June 2017 that he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo and said he was “not confident that the prohibition on improper monitoring of attorney-client meetings” at the detention center was being followed. The U.S. Attorney’s office in Kansas also improperly spied on communications between more than 700 defense lawyers and their clients at a Leavenworth, Kansas federal detention facility. Over a two-year period, the private prison also improperly recorded more than 1,300 privileged phone calls between public defenders and their clients.