| | Issue #19.48 :: 06/25/2008 - 07/01/2008 | Bugs in the courthouse
Is the Columbia County Sheriff’s Department listening in on attorney-client conversations by using secret audio surveillance equipment in the courthouse?
| BY MURFEE FAULK
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AUGUSTA, GA- During a felony trial in Columbia County a few years back, an attorney was discussing strategy with his client. As the attorney tells the story, they were sitting in an empty courtroom during recess, speaking softly so that they would not be overheard.
When court resumed, the prosecutor indicated that he knew the content of the strategy session, which the attorney says could not have been overheard without the use of the courthouse security system.
“He knew my strategy, both the overall picture and the details of it. I was stumped at the time.”
This attorney and two others tell Metro Spirit they believe their client conversations, traditionally respected as immune from eavesdropping and forced disclosure, may have been violated at the Columbia County Courthouse Annex, the county’s main courthouse on Ronald Reagan Drive. They say odd things have happened in that building that could only be explained by the unethical use of the building’s audio surveillance equipment.
Legal experts say this type of undisclosed audio surveillance, which the Columbia County Sheriff’s Department admits is part of the facility’s security plan, might violate the Georgia law on wiretapping.
Legal or illegal, it has had an effect on the practice of law in Columbia County.
“Attorneys all over town know about this,” said a second attorney, but adds that nobody wants to speak up. Metro Spirit confirmed through conversations with members of the legal community, even those who have never had a similar problem, that they refuse to engage in sensitive conversations in any room of the courthouse, including those set aside for discussions between attorneys and clients. Fearing retribution, they have asked to remain anonymous.
“I tell my clients not to say anything about the case until we get back to my office,” said one attorney.
Soon after the courthouse was completed in 2002, the agency in charge of its security, the Columbia County Sheriff’s Department, drew up a state-mandated document describing the security procedures at the new facility.
William M. Fleming, then chief judge of Superior Court, signed the document, and that step appears to be the only review of the security plan’s legality.
Since then, Fleming has retired. In January 2007, Judge J. Carlyle Overstreet assumed the chief judgeship. Nobody seems to know if succeeding chief judges are tore-approve the plan. Overstreet says he has not seen nor been asked to approve any measures related to the security plan.
“I don’t think I’ve signed anything in the last year and a half about courthouse security, but I don’t think there is anything in the law that prevents security personnel from using audio-monitoring equipment.”
Overstreet said he was not aware of any microphones in the building other than those in courtrooms used for amplifying and recording trial activity.
“If it [audio equipment] is there, it is there without the court’s knowledge,” said Overstreet.
“I don’t think the security plan covers the details of the equipment, but if you think there is a problem there, I will look into it. I’m not sure, however, that there is a legal issue here because there is no expectation of privacy in a courthouse.”
That’s also the view of Russ Willard, spokesperson for the Georgia Attorney General’s Office.
“The law on eavesdropping is that as long as it is done in a place where there is no reasonable expectation of privacy, then it is legal,” said Willard.
“The warning signs you see posted at places like convenience stores are not a requirement,” he said when asked about the common practice of alerting the public to audio surveillance.
“In stores they serve as a deterrent to stop shoplifting.”
But while Overstreet, Willard and Columbia County Sheriff Clay Whittle all argue against privacy expectations at the courthouse, case law on the topic is more complex.
“It would depend on whether the courtroom door was open or closed and whether or not they reasonably believed they were alone,” said Melissa Ngo of the Electronic Privacy Information Center in Washington, D.C., responding to the alleged incident at the Columbia County Courthouse. “If the attorney and the client were speaking in such a manner that their conversation could not have been overheard without electronic assistance, then I would say there is an expectation of privacy.”
Ngo was, until recently, senior counsel for the Identification and Surveillance Project at EPIC and is now a consultant on privacy issues.
“I don’t think a case of a courthouse has ever come up before in wiretapping law,” said Ngo.
“I’ve never heard of a courthouse having building-wide audio- surveillance equipment.”
Privacy has been defined legally as the“expectation that confidential personal information will not be disclosed to third parties, when that disclosure would cause harm.” However, personal information is an expansive term and harm is difficult to prove.
Furthermore, while the law generally denies a right to privacy in public places, federal law makes exceptions. A privacy expectation exists when a “conversation is private and cannot be heard by others who are acting in a lawful manner,” according to one ruling.
Many visitors to Columbia County’s courthouse could expect their conversations to be considered private and protected unless the security personnel can prove either a probable cause for eavesdropping or a clear and present danger. In the absence of those two reasons for using audio equipment, the practice may violate civil liberties.
That’s because many of the conversations that take place in a public facility such as a courthouse are still personal.
A real-estate developer searching deeds with an assistant might, in the course of that business, express plans for a piece of property. That information, if leaked to a competitor, could cause economic harm.
Two employees of a clerk’s office discuss personal matters during a lunch break. That information, if overheard, could cause personal harm.
Court deliberations might involve private medical information, protected from further disclosure by federal law. Details of juvenile justice matters, also protected from public disclosure, might be discussed by parents and lawyers.
One simple solution would be never to discuss sensitive topics in public areas. That, however, explains Ngo, assumes that people are not going to be seeking counsel and making important decisions during the course of business in a public place.
“If you have to run off to a secure location every time you wanted to share a thought that you didn’t want overheard, that would be a major inconvenience for everybody.” That includes private citizens, lawyers representing clients, business people representing their companies and even public officials.
In short, says Ngo, the separation between public and private conversations is not so simple.
Critics charge that the surveillance society has been a long time in the making. Despite the Orwellian implications of widespread surveillance of citizens, however, the idea of a highly monitored society wasn’t always perceived as a negative.
As early as 1970, Zbigniew Brzezinski,national security advisor in the Carter administration, predicted the “gradual appearance of a more controlled society” made possible by advances in technology.
“Such a society would be dominated by an elite,” wrote Brzezinksi, “unrestrained by traditional values. Soon it will be possible to assert almost continuous surveillance over every citizen and maintain up-to-date complete files containing even the most personal information about the citizen. These files will be subject to instantaneous retrieval by the authorities.”
And, Brzezinski might have added, the citizen would be monitored without consent at the local courthouse.
Columbia County officials are naturally secretive when it comes to the equipment they say is meant to be used in a hostage-rescue situation or other criminal matter. They say the equipment is there to protect the public, and, in exchange for that protection, the public has no right to know the details.
Metro Spirit filed an open records request with Columbia County and only obtained an invoice of an X-ray machine near the entrance. Even then, much of the information was redacted.
Officials cited an Open Records Law exemption that shields security-related information.
Much of the equipment county officials did not want to acknowledge, however, is located in a second-floor room behind an unmarked door. Staffers refer to the room as “the control room.” Deputies monitor an array of video screens and a panel of switches that control individual microphones.
Deputies are able to selectively turn on an individual microphone and they have the option to record what they hear. At the flip of a switch, they can also activate a building-wide recording.
In an interview in his office, Sheriff Whittle confirmed the capabilities of the equipment, but refused to give specifics. He said deputies do not routinely record audio. He would not say whether they listen in as a routine aspect of their security plan.
Whittle explained some details of the department’s emergency procedures and asked that they not be revealed. Metro Spirit has agreed not to disclose some of the specifics.
Asked if safeguards against misuse were engineered into the equipment, the sheriff provided no convincing details. Typically, surveillance software used by many federal agencies would create an audit trail that could be examined later for telltale signs of misuse. Judging by the interview with the sheriff, it is very unlikely that such safeguards exist.
The sheriff denied a request to see the equipment and even threatened a reporter with arrest for obstruction of justice for not revealing the names of the attorneys making the initial allegation. Metro Spirit has a policy of not revealing confidential sources, even under threat of arrest.
“We’re not talking about a subpoena here, son. We’re talking about an arrest warrant,” said Sheriff Whittle.
Shortly after the courthouse was finished and the surveillance system turned on,something of a standoff was said to have occurred between Clerk of Courts Cindy Mason and the sheriff’s department.
One of the attorneys familiar with the situation says that Mason asked that the equipment be removed from her department because she thought it violated the rights of her employees. Records show that the clerk’s office paid $10,000 for its own surveillance system, which included six cameras and a video recorder, but no microphones.
“She just flat out said she didn’t want other people listening in on discussions in the clerk’s office,” said the attorney. “She didn’t want her employees under the constant scrutiny, and the risk that conversations would be overheard and fed into the rumor mill.”
Mason, however, says this is not the case.
“We put our own system in place because it is better suited to protecting files and documents,” said Mason. “We didn’t want deputies to have to be responsible for protecting documents in addition to their other duties. We’ve had people just walk out with deed books before.”
While privacy experts such as Ngo say the question of the legality of eavesdropping in a courthouse treads new legal ground, Columbia County is apparently not alone. Sheriff Whittle said that audio surveillance is common in most courthouses in Georgia built during the past 15 years.
In Richmond County, a commission subcommittee is working on the design of a new Judicial Center and construction should begin next year. Brian Patterson, a sergeant with the Richmond County Marshal’s Office, is the panel’s security expert.
“If we do audio surveillance, we will post it,” said Patterson. “I just don’t think it is legal unless it is posted clearly for the public.”
Patterson is not an attorney, but he cites case law as if he were one. He deftly navigates and lays out the complexities of the expectation of privacy.
“It all depends on just how much privacy you expect to have,” said Patterson. “In a courtroom, there is no expectation of privacy. In a witness room, however, there has to be an expectation of privacy. And there is definitely an expectation of privacy in a lawyer’s conference room.”
The marshal’s office might have a more difficult time legally approving building-wide audio surveillance because the new center will contain more functions of government than Columbia County’s courthouse. The building is expected to contain the prosecutor’s office and possibly some functions of the public defender’s office and the sheriff’s department.
People are already lining up to provide the city with the equipment that would provide security monitoring.
“At our last meeting of the Judicial Center Subcommittee, we had two vendors of security software,” said Patterson.
Metro Spirit searched for evidence that the audio-monitoring equipment in the Columbia County courthouse contaminated the fair and equitable practice of the courts, and found one case in which an attorney, under oath, argued that her client did not receive a fair trial because of the equipment.
In the court transcript of an appeal proceeding in 2003 in a child molestation case, the attorney argued that sheriff’s department personnel made recordings of privileged attorney-
client conversations. The attorney testified under oath that when she later tried to subpoena the tapes, she was told that they were purged every 30 days.
“I was unaware at the time that the private conversations that I was having with my client... were simultaneously being taped by the sheriff’s department in a room on the other side of the elevators in the outside hall,” said the attorney under oath.
“Some short time later, a current client from our firm was talking with his attorney… And while he was discussing his case with his attorney, a member of the Columbia County Sheriff’s Department came into their private conversation in this courthouse on the second floor and repeated what they had discussed,” said the attorney.
Judge Bernard J. Mulherin denied the motion for retrial after receiving assurances from a court bailiff that the audio-monitoring equipment remained turned off during trials. | |
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