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.