Post last updated at 5:33 p.m. Thursday, Sept. 14:
The Douglas County jail was recording phone calls between some defendants and their defense attorneys for at least several months, a violation of their attorney-client privilege.
Calls between defendants and 16 attorneys have been recorded, according to testimony Thursday morning and information later provided by the Douglas County Sheriff’s Office.
The information came to light during a hearing for Derrick Reed, 18, who is charged with first-degree murder in the March 2023 shooting death of 14-year-old Kamarjay Shaw.
Calls between Reed and his defense attorney, Mark Hartman, were among those recorded.
Lt. David Hardy of the Douglas County Sheriff’s Office testified that he’s been working in his current position as an administrative lieutenant over the jail since February. One of his duties is to administer ICSolutions, the inmate calling system the jail uses.
Inmates’ calls from the jail are regularly recorded, and Hardy said some corrections officers routinely “spot check” calls to make sure there are no outgoing or incoming threats to safety or communication about contraband.
To ensure calls with defense attorneys are not recorded, Hardy said, there are boxes that must be checked on contact entries in the ICSolutions system. When it’s done correctly, calls to attorneys’ phone numbers are never recorded, he said.
Hardy said he found seven attorneys’ contact information that he had not input correctly to ensure that calls to and from their clients would not be recorded.
Prosecutors discovered the issue when victim-witness coordinator Michelle Walter was reviewing calls in Reed’s case on Aug. 30.
Walter said as soon as she realized Reed was speaking to Hartman, she stopped listening to the recording and called Chief Assistant District Attorney Jennifer Tatum. Tatum told her to also contact Hartman and the person at the jail who provides the recordings, she said. Walter said she recognized Hartman’s voice, but she did not hear any discussion of case strategy.
Each call also includes a prefatory introduction asking the inmate to say their name, and an automated message that a call is being recorded. Walter said she had never heard any other calls between attorneys and clients, so she did not know whether that message was customary in privileged calls.
Hardy said the system showed Walter had listened to 16% of the 12-minute call, which is approximately 115.2 seconds, or less than two minutes.
Hardy said system records showed that three calls with attorneys had been accessed, including on Aug. 30 when Walter accessed the phone call Reed made to Hartman. He said there was another call that a now-former corrections officer had accessed between Reed and Hartman from Aug. 19.
The hearing ran out of time before Hardy could discuss the third call, and the sheriff’s office did not disclose what that call was in a statement later Thursday.
“The system allows us to determine how much of that call was accessed based on its ability to track percentage, and we have found among those three that one call was accessed but not listened to, for example,” the sheriff’s office said in the statement.
Once calls are marked as privileged in the system, Hardy said, he is unable to see the calls’ full history. Walter also said she was unable to download the recording to provide it to Hartman during a meeting about an hour after she discovered the recording because she was already locked out of the call.
“As part of examining the scope of the issue, DGSO staff have found seven different phone numbers from law offices tied to five attorneys – some attorneys used more than one number from their office – that should have been set to not record, and deputies later found 11 additional attorneys who should have had their numbers marked as not to record as well,” George Diepenbrock, a spokesperson for the sheriff’s office, said via email in response to follow-up questions later Thursday afternoon.
“For all of those phone numbers, we have added the no-record setting going forward and blocked previously recorded calls from being accessed. At this point we have found only the three calls mentioned above were accessed,” Diepenbrock’s email continued. “For attorneys who have not yet been notified by phone, we are in the process of letting them know.”
Diepenbrock said DGSO is conducting a full audit since the inception of the ICSolutions system in 2011.
“There was a data-entry error, and we recognize we fell short of implementing safeguards of privileged conversations,” Sheriff Jay Armbrister said in a news release Thursday.
“It was unintentional, and we feel we are immediately rectifying the error and are working to make things right and notify all attorneys affected,” Armbrister’s statement continued. “In the interest of transparency to the public and justice system, we understand the importance of working with the Douglas County District Attorney’s Office to conduct a full audit of calls accessed since the inception of the system.”
Diepenbrock said he was providing “the answers we can provide at this point.” His response did not include the names of the defense attorneys whose calls were recorded, or how many total calls were recorded.
Though Hardy testified about contacts he had input incorrectly from February through August, it was not clear whether other attorneys’ calls may have been recorded prior to February.
Hartman also brought to the judge’s attention some comments on a Reddit post that he had determined to have come from someone in the district attorney’s office.
One user had commented that the practice of trying kids as adults was abhorrent; another user replied, in comments that have since been deleted, that Reed was going to turn 18 in the next several days, and calling him a “kid” was a stretch, among other comments.
Hartman said the user who responded in favor of prosecution as an adult — a username of “classy-motherf – – – – – ,” — was a prosecutor in the DA’s office, though not any of the attorneys working on Reed’s case. Deputy DA Joshua Seiden agreed and said the user was not Tatum, Senior Assistant District Attorney Ricardo Leal, DA Suzanne Valdez or himself, and said they had handled the matter internally.
Hartman said at this time he wasn’t asking the judge to do anything about that, but he needed to do more research on it.
The hearing will continue at 10 a.m. Monday, Sept. 18. The case is set for trial starting Nov. 27.