You Only Think You've Got Rights
by Edgar J. Steele
As noted previously, the US Constitution’s 6th Amendment guarantees “In all criminal prosecutions, the accused shall… have the assistance of counsel for his defense.” The US Supreme Court has called the confidentiality of the attorney-client privilege in communications the “oldest known confidential privilege known to the common law.”
I knew this and, therefore, knew that, even if the federal prosecutors did happen to overhear a part of a call to one of my lawyers, they would turn a deaf ear. In thirty years of trial practice, I often heard prisoners allege that their communications with their lawyers were monitored. I always assumed that was done by jails and prisons for the sole purpose of preventing jailbreaks or other illegal activity, though even that sort of monitoring was prohibited by the 6th Amendment.
Federal Prosecutors Routinely Listen In
I never dreamed that such monitoring was ordered by the federal prosecutors, who demanded and got copies and recordings of every single communication between prisoners and their lawyers.
Read that last sentence again, because that is exactly what happens. The federal judges give cover to this incredibly pervasive and pernicious behavior by all manner of federal authorities. So much for “checks and balances.” So much for even the illusion of freedom in today’s Amerika. How do you think they get that 97% conviction rate? Do you really think that many accused people actually could be guilty?
Wake up, folks. It really is that bad.
Here, let me give you just two fully-documented (and ignored by judges) examples of each type of such illegal intrusions by the government in my case (telephone, letter and personal conference):
Government Recorded My Calls to Attorneys
In state and federal jails and prisons, inmates do not receive telephone calls. Inmates are allowed outgoing calls only, at specific times and only with specified phones, usually at a cost of about fifty cents per minute.
Repeatedly, I was assured by the guards at Spokane and Bonner County jails that my phone calls to lawyers never would be monitored, let alone recorded. They lied. Both of these jails (and all others in which I have been held) have written policies against such secret and illegal monitoring, which are routinely are ignored. Here is Spokane’s, where so much of the secret taping took place, in my case, despite the written assurance that, per Washington State Law, inmate phone calls would not be monitored or recorded “except by court order”:
The Feds Admitted It
How do I know the feds were listening in to my attorney calls? They admitted it!
At one of the many secret hearings in my case, held outside my and the public’s presence, on October 7, 2010, federal prosecutor Traci Whelan asked Judge Winmill to prohibit Attorney Wesley Hoyt from representing my wife, claiming that Mr. Hoyt was “too closely aligned” with me. How did she know? She said that she had been listening to recordings of my calls to Mr. Hoyt. She admitted it. These were calls I made to Wesley Hoyt, discussing all aspects of my case and in which I was trying to hire him to replace Roger Peven as my lawyer, too.
Mr. Peven wasn’t to share this revelation with me until much later, when he angrily told me that I “might as well call Traci Whelan directly, because she knows everything before I (Peven) do.” I still never have been allowed to see a transcript from that October 7 hearing.
When finally told by Mr. Peven that the government was secretly and illegally taping my telephone conversations with lawyers, already I was negotiating with Robert McAllister to take over my representation.
In one of my telephone calls in January or February 2011, I told Mr. McAllister I wanted a motion filed, as soon as possible, to disqualify and recuse federal prosecutor Whelan from further handling my prosecution because of her admitted illegal recording of my attorney phone calls. I also said, during that call to McAllister, that I intended to file an Idaho State Bar Ethics complaint about her illegal and unethical conduct. Less than a week after I told McAllister of my wishes, regarding Federal Prosecutor Whelan, she filed for another secret hearing, this time to ask Judge Winmill to declare that I had waived my attorney-client privilege merely by using one of those phones in Spokane County Jail, on which the preliminary recording said call “may” be monitored or recorded. Recall that the written policy assured inmates that such calls would not be recorded, “except by court order.” Remember, too, that I repeatedly had been assured byguards that such recording was not taking place (though it was).
One Federal Hand Washes the Other
Following yet another secret hearing from which both the public and I were excluded, on February 9, 2011, Judge Winmill was only too happy to provide cover for Prosecutor Whelan’s illicit activity by ruling that I waived my right to confidential telephone communications merely by using the only phone I was allowed to use. As we will see next, the Feds were also opening my outgoing mail to lawyers and monitoring my in-person lawyer visits. How, exactly, was I expected ever confidentially to contact any lawyer.
Incidentally, I was not allowed to make any calls (not even if recorded by the feds) to any lawyer during the first month I was held at Spokane County Jail.
So, there you have proof of two times that federal prosecutor Whelan listened to recordings of my telephone calls to two lawyers that were to become my attorneys of record, during the phase of my interviewing them to take over my case.
First, Whelan admitted listening to a tape when she moved to have Wesley Hoyt barred from representing my wife.
Second, Whelan filed a motion to have my attorney-client privilege declared waived, as soon as she heard on yet another tape that I was going to file a Bar Ethics Complaint against her and have my new lawyer (McAllister) move to have her barred from the case. There was no other reason – nothing – to justify the motion for waiver that she then filed (and which the judge illegally granted).