Federal Prosecutor Powers: Is the FBI Recording Your Conversation Down at the Courthouse?

There are more criminal cases filed in state courts here in Dallas and North Texas than in the federal system, and there are a number of reasons for this. However, the power of the federal system and the impact of federal practices and federal court cases upon state and local criminal systems cannot be underestimated. It’s big.

And there were several stories in the news this past week dealing with increasing federal power in serious criminal matters that everyone in North Texas and the Dallas – Fort Worth area should be aware and concerned about, including:

1. Privacy at the Courthouse: FBI Agents Okayed to Record Conversations on County Courthouse Premises Secretly and Without a Warrant

This week, a federal judge ruled it is okay for FBI agents to secretly listen to conversations at or near county courthouses and to record those conversation, too WITHOUT ANY NEED FOR A SEARCH WARRANT.

Granted, this was a California federal district court judge and things might not turn out the same way in a Texas federal district courtroom, but the law is the law and it’s good precedent.

You can read the full opinion issued on July 22, 2016, here. (In the case, a motion to suppress the FBI’s recording of a conversation which took place at the courthouse bus stop was denied.)

Lesson here: If you are at the courthouse or anywhere near it, don’t assume that your conversations are private and no one is eavesdropping. Because now the feds have a precedent that says it is acceptable for them to record whatever you might be saying there. No warrant needed.

From a criminal defense lawyer’s standpoint, there are many occasions where those federal agents might hear some juicy tidbits (from their perspective) if they were to listen into what people were discussing around the courthouse. It’s reasonable to assume that many people will be talking about legally-related things while they are there … at the courthouse.

Makes sense, right? Emotions can be high during these times, too: people can be scared for themselves or a loved one. Sometimes, people may be angry or confused while visiting the courthouse, too. Things might be said which otherwise would not in more calmer circumstances.

Witnesses, accused, friends and family offering support — everyone needs to be aware that what they say to each other on the courthouse premises might be recorded and used against them or a loved one without their knowledge or permission.

2. Cozy Relationships Between Judges and Prosecutors: Judge Sentences Man to Death Without Bothering to Read Prosecutor’s Proposed 89-Page Death Sentence Order

The United States Supreme Court has agreed to hear arguments from an Alabama Death Row Inmate and it’s a case that every criminal defense lawyer is watching – because it’s another example of how close the relationship between prosecutor and judge can be. (Remember the judge and the prosecutor who were having an affair during a capital murder case? Another example.)

SCOTUS will rule on the case of Doyle Lee Hamm, who was sentenced to death by an Alabama trial court judge who signed the death sentence order less than 24 hours after a proposed order draft was presented to him by the prosecution. Now, that’s not a bad thing for the prosecutor to file his suggested draft of an order. Defense lawyers present proposed orders, too. Proposed orders are fine. They’re part of the job for both sides.

What happened in Hamm’s case was that the proposed order — all 89 pages of it — was signed by the judge and entered in the record, officially sentencing him to death, without the judge even bothering to change one word of the draft document. The judge didn’t even both to cross out the word “proposed” in the title.

Read the 1999 Order sentencing Hamm to death here.

As the Marshall Project argues, this “exposed the entire process as a sham.” In arguing to the Supreme Court of the United States that Hamm’s due process rights have been violated, his lawyers claim that the Alabama judge never even READ that draft before signing off on it. And the curious thing here — the state attorneys aren’t bothering to say that this allegation isn’t true.

No one is claiming that the judge read the Death Sentence Order written entirely by the prosecutors before he signed it.

That’s a pretty tight relationship between a prosecutor and a judge, especially in a case where a man is facing the death penalty and is known to be intellectually disabled as well as brain damaged. Shouldn’t we expect a judge to consider independently and with his own education and expertise the language of the document that is going to put a man to death once he places his signature upon it? Is it okay to rubber-stamp this document from the prosecutor? 

3. Federal Prosecutors SOP Manual on Applying the Law Kept Secret From Defense Lawyers

On July 19, 2016, a federal appeals court reviewed the decision of a federal district judge and agreed with the decision to withhold the “Blue Book” of federal prosecutors from defense counsel (in any case). This “Blue Book” is a manual developed by the Department of Justice as a training guide for prosecutors who work for the federal government. Included in this manual are instructions to these federal prosecutors on what they need to turn over to defense lawyers in a case, and what they can keep hidden.

Now, it’s a big problem in prosecutorial misconduct cases to have prosecutors making the call on holding back evidence from the defense — because it’s really (REALLY) tempting for many prosecutors to keep secret stuff that might hurt their case and block them from another win on their record. And we all know how bad prosecutorial misconduct is these days: it’s an epidemic.

So, up in Washington, D.C., the National Association of Criminal Defense Lawyers filed to have a gander at the Blue Book under the Freedom of Information Act. Last week, the federal appeals court for the D.C. Circuit affirmed the lower court’s decision to bar the NACDL from getting that looksie.

This despite the fact that the Justice Department’s argument that their Blue Book is protected by the “work product privilege” is too broad — that is a legal protection applied only to the work of lawyers in a specific case, and arguably NOT applicable to an overall departmental Standard Operating Procedure (SOP) or Guideline.

Especially when those SOPs are defining for the prosecution how they are to apply federal law according to their Powers that Be. Defense lawyers have a right to know the legal position of the prosecution insofar as applying the law itself.

Read the appellate court’s opinion here.

This may be a lost battle over the Blue Book, but it’s not the end of the war by the defense bar to get access to it.

Final Government Story Comes From Brazil

Today, down in Rio De Janeiro there are gizmos floating above the city in the sky that contain sophisticated surveillance devices, enabling the government there to watch over the entire city from above. Read more about these “all-seeing eyes” in an article published by Fast Company today. Experts gloat that it provides the government officials with the ability to monitor what EVERYONE is doing in the city as these “eyes” watch from overhead. Now, they can’t hear what is being said (yet), they can only watch what is going on.

But it’s enough to get one pause today, given these federal case precedents, isn’t it?

When was the last time you read George Orwell’s 1984?  See, “A Look at Some of the Ways George Orwell’s 1984 Has Come True Today,” written by Keri Blankinger and published in the New York Daily News on June 6, 2016.

Never has the need for criminal defense lawyers to fight zealously in protecting the rights of privacy and against unreasonable search and seizure and for a citizen’s right to a fair trial with due process been more great.

For more information on privacy and search and seizure rights, check out our web resources as well as Michael Lowe’s Case Results and read his article,

PRE-ARREST CRIMINAL INVESTIGATIONS – Dallas Justice Blog