Potential civil rights problem at new jail, attorneys say

A design oversight at Tulare County’s newest jail may be putting the civil rights of prisoners detained there in jeopardy.

The problem, say defense attorneys, is a lack of interview rooms at the newly-opened South County Detention Center (SCDC) and the video conferencing system the Tulare County Sheriff’s Office (TCSO) has chosen as a substitute.

“There are so many things wrong with that,” said defense attorney Michael Cross. “There’s no guarantee of privacy.”

Cross, who specializes in cases where conviction could carry a death penalty, says substituting video chats for face-to-face meetings with clients could lead to violations of the right to adequate counsel guaranteed by the Sixth Amendment.

“They record those visits,” Cross said. “The system envisions we’ll make an appointment for a certain time, and they’ll turn them off. We have to trust that they’ll do that.”

Public Defender Concerned

Tulare County Public Defender Lisa Bartolino says she shares Cross’s worry about possible violations of attorney-client privacy.

“There have also been other counties where conversations were recorded when they shouldn’t have,” she said. “So, I have concerns.”

Bartolino says she’s been working with the TCSO to correct the situation, and a solution has been found. While the video conferencing system will still be used, face-to-face interviews will also be allowed when defense attorneys ask for them.

“The Sheriff’s Office is also making space available for in-person meetings with attorneys upon scheduled request,” said TCSO Media Supervisor Ashley Ritchie.

Ritchie described the issue as part of working out the bugs in the SVDC’s first days of operation.

“The South County Detention facility has only been open for a month, and we are actively addressing any issues that might come up,” she said. “The facility was built with the newest technology and we are working on any concerns raised by the Public Defender and/or anyone else.”

Design Flaw

The SCDC’s design includes two rooms that were intended for use as client interview rooms for visiting defense attorneys, but the rooms do not provide adequate privacy, Bartolino said.

“The rooms they originally had set up for us, they were not sound-proof,” she said. “It’s just one of those things they need to get input from everybody. It’s just one of those things architects don’t think of.”

Bartolino described a similar situation at the Tulare County Courthouse in Visalia. In that instance, jury rooms were not sound-proof, and deliberations could be overheard by anyone standing outside. The county’s solution in Visalia is to keep those areas clear while juries are discussing their verdicts.

While a solution is in the works, privacy may continue to be a problem until the fix is implemented.

“I’m quite confident that within the next few workdays it will be resolved,” Bartolino said. “We’ll temporarily use the video conferencing system.”

Lack of Trust

Defense attorney Cross remains concerned about the efficacy of the video system.

“It’s not so much that I might not trust them (TCSO deputies). My clients won’t,” Cross said. “They won’t be forthcoming. In some cases, you have to establish a relation of trust. I’ve had clients ask me, ‘If I tell you, are you going to tell the DA?’”

If clients are afraid to be truthful, Cross says, any conviction could be challenged on the basis of not receiving adequate legal counsel, a violation of the Sixth Amendment.

“You have to have candid, open communication, and you can’t do that with a fear of being recorded,” he said. “I think it’s ineffective assistance of counsel, making it unethical to interview over a video system, because you know your clients are not going to be candid.”

Cross and Bartolino both pointed to the example of Orange County, where jailers regularly recorded confidential video meetings between defendants and their attorneys. The recordings were then allegedly shared with prosecutors who used the information to get convictions.

In the Orange County case, as many as 100,000 attorney-client meetings may have been recorded, and a class-action lawsuit has been filed on behalf of some 400 inmates who say their rights were violated. Attorneys are seeking a $500 million payout for the alleged wrongdoing.

Because private video meetings have been recorded and used against defendants before, Cross says, it could happen again in Tulare County.

“Everybody knowing that, it’s reasonable to fear it might happen here,” he said.

‘Chilling Effect’

Bartolino agrees a lack of personal interviews could make defending clients more difficult and open the door to challenging verdicts.

“The bottom line is, yes, if we’re not allowed to see our clients in the facility, it is going to have a really chilling effect on our clients,” she said.

Cross also said limiting attorneys’ access to their clients makes defending them much more difficult, especially in cases where the life of a client is on the line.

“These are death-penalty cases, which are very different from regular cases,” he said. “You have to do an in-depth investigation of your client’s entire life. It takes a lot of interviews, a lot of time.”

Bartolino, who is hoping to maintain a non-confrontational relationship with the TCSO, also expressed concern about having to schedule meetings with clients ahead of time.

“We’ve been told we must provide 24-hour notice, which can be tricky since an attorney may finish in court early and want to meet with a client,” she said.

Other Solutions

The TCSO offered other solutions before agreeing to make a regular meeting space available. Those included moving clients to the Bob Wiley Detention Center north of Visalia, which would have required Porterville-based attorneys to travel more than 40 miles, or transporting prisoners attorneys wished to interview to the Tulare County Courthouse along with prisoners making an appearance in court.

The second of the solutions would require prisoners to be awakened at 4am and to spend the entire day in a holding cell.

“Our clients are going to be reluctant to do that, as you can imagine,” Bartolino said.

Cross and the Public Defender’s Office have both received court orders mandating face-to-face meetings with their clients in death-penalty cases. In Cross’s cases, the TCSO is complying with the order by moving his clients back to the Main Jail in Visalia.

“They’re clearly not going to do that with all of them,” he said.

Indeed, in one instance a member of Cross’s defense team met with a client in a classroom at the SCDC. In the case of the PD’s office, Bartolino said one of her deputies is now meeting with clients in the basement of the South County Justice Center in Porterville.

“They arranged for her to meet with her four clients to meet in the basement of the courthouse in Porterville,” she said. “So the sheriff will be transporting those four clients to the Porterville Courthouse to meet with those four clients.”

Appeals Possible

Visalia-based criminal defense attorney Erin Leedy has found another flaw in the use of video conferencing for client meetings. While the TCSO has promised not to record attorney-client meetings, it will not extend that guarantee of privacy to others who must meet with her clients, such as social workers, medical personnel and those who will provide expert testimony.

“They will not turn off the recorder for these people, because they’re not attorneys,” she said.

Virtual meetings also make it difficult to administer tests to defendants and to provide them with documents. It also interferes with defendants’ ability to communicate nonverbally by providing drawings and maps, Leedy said.

In light of the situation in Orange County and the $500 million in damages attorneys are seeking, Leedy believes the county may be opening itself to future litigation if it continues to rely on the video conference system.

“They could get themselves sued,” she said. “Furthermore, they could endanger the case. If you can’t have confidential meetings with your client, it could come back. Convictions could be appealed because of it.”