The series exposed how jails across the State of Maine recorded nearly 1,000 attorney-client phone calls in a single year and shared recordings with police and prosecutors, who were able to listen to parts of those private calls before trial.
Defendants have a constitutional right to privately consult with an attorney in order to build a defense, but the risk of having those conversations recorded has undermined that right to the point some defense lawyers have reported their clients will no longer speak to them on the jails’ telephones.
Gov. Janet Mills instructed the state Department of Corrections to work with legislators on a solution. While lawmakers entertained a bill that would penalize a person who “knowingly eavesdrops” on a conversation between an attorney and a defendant, lawmakers formed a study group to review policies for attorney-client contact and recommend changes.
That study group recently recommended a series of policy changes to sharply limit the practice. Among the proposed changes are that county jails confirm for defense lawyers and incarcerated people the attorney’s phone number is private and will not be recorded by the jail’s phone system. The group urged law enforcement and prosecutorial offices to adopt policies and write a uniform procedure to prevent the recording of attorney-client phone calls. The state may develop a centralized website for attorneys to register their numbers to be shared with jails and prisons. Currently, the policy proposals lack an enforcement mechanism or penalty. Lawmakers will consider these recommendations in the legislative session beginning in January 2023.
The reporting prompted several county sheriffs to restrict access to recordings made by the jails’ phone systems to only top jail administrators. Securus Technologies, providing inmate phone services to most Maine jails, added new warnings at the start of phone calls to notify the parties if the call is private or will be recorded, or if it can be monitored.
Deputy Attorney General Lisa Marchese, once dismissive of the severity of the release of confidential attorney-client phone calls, has instructed prosecutors to make note of the date and time of potentially privileged calls. She agreed to have her office draft and adopt a policy about handling of privileged materials, which until now was an informal procedure. Changes will be made at the criminal justice academy to better train correctional officers about defendants’ constitutional rights.
Samantha made 100 public record requests to county sheriff’s offices to collect records about the state’s 15 jails’ contracts, policies, revenue, usernames, call logs and recording access reports with their private phone vendors.
Jails in Aroostook, Androscoggin, Franklin and Kennebec counties fully released data on how many times their phones recorded defense attorneys. For each suspected attorney call recorded by a jail, the Monitor identified who the phone number belonged to using annual registration information attorneys submitted to the Board of Overseers of the Bar.
A list of 439 defense attorney phone numbers compiled by the Maine Commission on Indigent Legal Services in the spring of 2020 supplemented the registration records. Samantha contacted each of the 46 law firms and lawyers identified in the data and many said it was their first time hearing that their calls were recorded by a jail. She compiled the call records into a searchable database, which The Maine Monitor made available for free online so the public could search to see if their attorney-client phone calls were recorded.
The first draft of the database was compiled into Google Spreadsheets. The newsroom then contracted with a developer to build us a WordPress plugin version of the database that could be hosted on our website.
Context about the project:
The digging into this story began when a criminal defense attorney reported that the attorney general’s office had received and listened to part of a recording of one of his phone calls with a client in the Somerset County Jail. Monitor reporter Samantha Hogan immediately wanted to know whether the recording was an isolated incident or if it was a sign of a systemic problem of Maine jails recording privileged conversations. To answer her question, she made more than 100 public records requests to county sheriff’s offices and jails for call data, policies, inmate handbooks and emails and conducted three dozen interviews with attorneys, defendants, sheriffs and the former chief justice of the Maine supreme court, which together revealed that Maine county jails were routinely recording private attorney-client phone calls and sometimes sharing those recordings with police and prosecutors.
County sheriffs were reluctant to release data that would show how many times their jail’s phone system had illegally recorded attorney-client calls. Samantha doggedly pursued the release of this data, which several counties ultimately shared, and The Maine Monitor made public online through a searchable database.
The Monitor even went to court to fight for the release of these public records. In August 2021, the Media Freedom and Information Access Clinic at the Yale Law School and local counsel helped the news organization sue York County after it denied multiple requests for data about attorney calls recorded by the York County Jail. The county settled and agreed to release some data showing at least one attorney-client phone call was accessed. Our litigation to release more records is ongoing.
Samantha traveled up and down Maine to courthouses in Aroostook, Androscoggin, Cumberland, Kennebec, Knox and Lincoln counties to review paper case files — since Maine has no online repository of criminal court records. She spent dozens of hours reading thousands of pages of court filings and transcripts.
Prior to publication, two county lawyers threatened to sue The Maine Monitor if it named county employees who had listened to confidential recorded attorney-client conversations. Neither county has followed through on their threat to file a lawsuit after the articles were published.
The Maine Monitor is a small newsroom and a still growing one. In order to create the public database of information about the recorded calls, we had to contract with a coding developer to build the database and the WordPress plugin for the database. Aside from getting external financial assistance from three foundations (International Women’s Media Foundation, Report for America and Pulitzer Center), the project largely came to fruition thanks to the editorial guidance of Rose Ciotta from the Investigative Editing Corps.
What can other journalists learn from this project?
The truth is out there, it’s only a matter of getting the records and data to back up what you may already know. The path to getting those records, though, may be daunting — but well worth it. Being denied your records request should only make you want to doggedly pursue the records more, as records request are largely denied because of a fear of what journalists will uncover. Yes, there are some records that cannot be provided, or provided without redaction, but it is the job of the newsroom to determine which records should be public and fight for those records. People will try to persuade you off the path, but that should fuel your drive even more. Remember, the potential impacts can be great. In the case of the Eavesdropping in Maine Jails series, constitutional rights are being restored to inmates because of our reporting. Lawmakers have the opportunity to overhaul the attorney-defendant process at Maine jails. A national phone company has taken steps to implement new safeguards, and is looking at implementing more in the near future.