Staten Island Cameras and the Battle for Attorney-Client Privilege
Oct. 5, 2015 (Mimesis Law) — I have wanted to write about cameras for some time now. Specifically, those attached to the dashboards of police cruisers and the shoulders of police persons. But events can sometimes change the plans of even the most meticulous planners (not that I am one of those people). Staten Island, NY, recently unveiled its newest public extravagance, a brand new, state-of-the-art $230 million criminal courthouse.
As the nation debates what place cameras should have in policing, Staten Island has figured out a novel location: in the attorney interview booths of their new courthouse, pointed right at the defendant.
These not-so-candid interview booths are usually the location of the first meeting between attorney and client, often right before he is arraigned. To those who do not understand the vital importance of the arraignment interview, Scott Greenfield explains:
These few minutes are often the most important in a defendant’s case. They determine whether the defense lawyer can make a viable pitch for release or low bail by learning about the person on the other side of the shatterproof glass, what happened, how strong the case is, how closely tied to the community they are. If they get out, outcomes vastly improve. If they stay in, they’re pretty much screwed. This matters.
An arraignment is like a mini trial. The district attorney makes her pitch about how utterly guilty your client is and how much of a danger he poses to the community (still not a legal factor in bail determinations in New York). The defense attorney then must convince a judge that they should let the defendant walk out of the courtroom a free man. The government has said your client robbed someone. He often is not going to get released unless you can convince the judge that there is a good chance those charges are not true.
For the most part, the only preparation you have for that initial bail application is the relatively brief interview with your brand new client. This is often a tense meeting, in which the attorney has to first earn the trust of a complete stranger while prying as much information as possible out of him. The good ones can take control of this interview immediately and convince the client that the person looking at them through the window is on his side.
Developing this all-important trust becomes immensely more difficult when one of the first things that the defense attorney must tell their new client is that their conversation is being recorded by the government. Not only recorded by the government, but kept for 90 days by the Department of Corrections.
Thankfully, Tina Luongo, Attorney-in-Charge of the Legal Aid Society’s Criminal Defense Division, has decided to fight this encroachment. But she shouldn’t have to be. See, Luongo, the premier voice of indigent defense in New York City, already fought against cameras in the interview booths long before they were ever installed in the Staten Island courthouse. During the planning phase, Luongo raised concerns with the City about this clear violation of attorney-client confidentiality. Also at the table was the Department of Corrections, who cited nebulous notions of “security” to justify the unprecedented (at least in New York) intrusion.
At that point, the City of New York could have engaged with Luongo. Indeed, she was not merely speaking for the Legal Aid Society, but, as is often the case, she was fighting on behalf of all of New York’s defense attorneys and criminal defendants. But there was no meaningful discussion of how to appease the DOC’s undefined security concerns while respecting the sanctity of the clearly-established attorney-client relationship. The government instead, did to Luongo what is so often done to defense attorneys – they ignored her. The cameras remained in the design.
The City and DOC’s newfound “concern” for security in the interview booth is odd. New York interview booths have never been equipped with recording equipment of any kind. At least not that we know of. DOC can point to neither statistics nor anecdotal evidence that any kind of security issue exists within these booths. But bad people end up in jail. And bad people do bad things. So … security.
But security for whom? Scott Greenfield has spent plenty of time in those interview rooms and lived to tell the tale.
Ever see what it looks like in one of these cubicles? The separation between lawyer and client is so dense as to make seeing one another nearly impossible. The idea that a defendant could somehow do harm is totally absurd.
I have had some fairly heated exchanges with clients in those rooms, and never has my security been in doubt for even a second. I also did not have to worry that the conversation with my client was being watched and listened to by the government. Until now.
I’m sorry, did you say “listened to?” That’s right, I did. The cameras built into the arraignment interview booths are equipped with working microphones. When this obvious red flag was raised, defense concerns were answered with, “Oh those? They will stay turned off.” While the DOC may see itself as some kind of clever Lucy, holding a finger ever so lightly atop the “record” button, I can assure you that New York City’s criminal defense attorneys are not Charlie Brown. Microphones are for listening. They hold no security value in this setting.
But this is not the first time in recent memory that the DOC has decided tried to add another level of “surveillance” to their resume. In 2010, New York City DOC began recording inmate phone calls for the purpose of “security.” As far as the defense bar has been told, calls from inmates to their lawyers are not recorded, but this would require a level of respect for inmate rights that Rikers Island has failed to show in so many other areas. After DOC started recording inmate conversations, city prosecutors now had a game-changing gold mine of information at their disposal. But don’t worry. The inmates are told that their calls are being recorded.
It is virtually impossible for a person who is locked up not to discuss his case with friends and family. Sometimes, yes, they are stupid enough to confess to their brother that they did, in fact, stab that dude. But most of the time, inmates speak about their cases in very unclear terms. Although only confessions (“I stabbed him”) or statement that show consciousness of guilt (“get rid of that knife for me”) are admissible, when the government is certain that the person is guilty, every statement sounds like a confession.
Additionally, inmates talk about their defense strategy. Often, this is a defense that their attorney has spent considerable time formulating, refining, and keeping secret from the prosecution. Is it fair that prosecutors gets to listen to a son tell his mom why a misidentification defense is going to lead to his freedom? No. Is it legal? Of course.
Against the backdrop of this massively misused net of surveillance, Tina Luongo is absolutely right to lead the charge against cameras in those Staten Island interview booths. City attorneys have said, “You don’t like the cameras? Take us to court.” Luongo and the Legal Aid Society is happy to oblige, already having filed an Order to Show Cause in federal court asking for the cameras to be removed permanently. She knows damn well that this is not just about Staten Island. If this is allowed in Staten Island, this wholly improper government intrusion into the attorney-client relationship will spread. Because … security.
To the city and state leaders who think that a little monitoring of a few attorney-client meetings is no big deal, think again. When it comes to non-existent security concerns versus maintaining THE bedrock principle of the legal profession, we will thank you to keep your damn cameras out of our meeting rooms.