Defense attorney questions Douglas County Sheriff’s Office’s handling of privileged calls

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A defense attorney on Monday further questioned a lieutenant with the Douglas County Sheriff’s Office about violating attorney-client privilege by recording calls between jail inmates and their attorneys, insinuating negligence.

Information first came to light during a Sept. 14 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 defendants in the Douglas County jail and 16 attorneys have been recorded, according to testimony on Sept. 14 and information later provided by the Douglas County Sheriff’s Office. Calls between Reed and his defense attorney, Mark Hartman, were among those recorded.

Michelle Walter, a victim-witness coordinator for the Douglas County district attorney’s office, was reviewing calls in Reed’s case on Aug. 30, and when she realized Reed was speaking to Hartman in one recording, she immediately stopped listening and notified all parties, she testified on Sept. 14. A hearing on the matter continued Monday morning.

Lt. David Hardy has been working in his current position as an administrative lieutenant over the jail since February 2023. One of his duties is to make entries into ICSolutions, the inmate calling system the jail uses. 

Hartman on Monday asked Hardy why the DGSO didn’t notice that calls between inmates and attorney phone numbers that had been entered as being “privileged” were accessible to the DA’s office — something that is visible in ICSolutions system. When Hardy responded it was a “mistake that happened and when we found out we corrected it,” Hartman pushed further.

“It sounds like, lieutenant, part of the problem is that there’s no continuing oversight to make sure that numbers that have been added to the system as not being recorded are not actually being recorded,” Hartman said. “Is that fair?”

Hardy agreed.

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. 

ICSolutions allows staff to sit in on live video visits, Hardy testified on Monday. He said he believes they do not have the ability to listen in on live phone calls, but wasn’t totally sure and if he’s called back to testify in this case, he said he will have that information.

ICSolutions, under Hardy’s direction, is currently working on a full audit to uncover the number of client-attorney privileged calls recorded and accessed, he said. He estimated results should be available in approximately a week.

Hardy testified that he had entered seven attorney numbers incorrectly since he began in his current position in February, and he found 11 more that were entered incorrectly prior to February, which is 18 total attorney phone numbers, or 16 individual attorneys. There could be more, but they won’t know how many until the audit is completed.

Hardy on Monday also testified that former DGSO Lt. Robert Berryman, his predecessor, led him in training on-the-job on how to use the ICSolutions system. Berryman didn’t give him an explanation as to why he shouldn’t select the “do not record” box, and Hardy didn’t inquire about it. There is a “long list of features” that can be added, and Hardy may have overlooked that option, he said.

Hartman said he may want to call Hardy back to testify once the audit yields results. Chief Assistant District Attorney Jennifer Tatum agreed a follow-up hearing may be necessary, but only if the issue directly impacts Reed’s case. As she does not know the contents of the calls that were accessed and doesn’t plan to refer to them in the future, she said she doesn’t believe the issue has affected the case.

Judge Sally Pokorny said the court will assess the need for an additional hearing after the audit results are reviewed.

The next hearing date was not yet set Monday. The case is set to go to trial beginning Nov. 27.

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Maya Hodison (she/her), equity reporter, can be reached at mhodison (at) lawrencekstimes (dot) com. Read more of her work for the Times here. Check out her staff bio here.

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