Texas Jails Recording Attorney – Client Communications: Defense Bar’s Assumptions About Jail Privacy Proven True With Houston and Galveston Jail Revelations

Here in Texas, just like the rest of the country, it’s assumed by most people that communications between lawyers and clients are protected – they’re top secret stuff, safe from anyone else because of the U.S. Constitution.  Right? That’s what you see on all the TV shows, isn’t it … defense lawyers and inmates talking about the defense case, safe from anyone’s prying eyes or ears?

Well, surprise.  If you are arrested and in a Texas jail then you better not assume that your chats with your attorney are protected.  Because they’re not.

Most criminal defense attorneys here in the Lone Star State don’t trust the confidentiality of Texas jail communications with their clients. (Just read some of our posts about Texas jailers and Texas prosecutors to learn why.)  However, it’s interesting to see that defense counsel are becoming publicly vindicated in their distrust.

Galveston Jail:  Changing Things to Stop Recordings of Lawyer – Client Conversations

How?  Seems that over in Galveston, they’ve been routinely recording conversations between people being held in their jail and their lawyers for many, many years.   No one bothered to tell the inmates or their attorneys, of course.  However, recently the Galveston County Sheriff’s Department instituted a new jail policy to stop it.

According to the Houston Chronicle, Galveston County Sheriff Freddie Poor has explained that a Galveston County District Judge complained about things, and now the Sheriff’s Department is doing things differently.  They’ve put all the criminal defense bar’s phone numbers into their computer and now, the recording devices in the jail automatically stop when that number is involved in an inmate’s phone call.

Houston Still Recording Attorney-Client Communications and Admits It

And Galveston isn’t a fluke.  In his story, investigative reporter Harvey Rice includes a quote from Harris County Sheriff’s Department spokesman Alan Bernstein that confirms the Harris County Jail in Houston also records conversations between attorneys and clients, right along with everyone else, and that’s still going on.

Though the story reports that Houston is trying to change this.  (Of course they are.)

Privacy Problems and More Here, and No Solution In Sight

When someone is arrested in this country, that does not mean that they did anything wrong.  Innocent until proven guilty is a cornerstone of our system of justice.  And if you are wondering if innocent people get arrested by police, just ask anyone at your local chapter of The Innocence Project.

Jails don’t consider this, however.  Anyone arrested should know that they will have less rights under the law until they are cleared of the charges.  After all, their privacy has already been taken from them, along with their freedom of movement.

Still, every inmate should be able to freely confer with his counsel.  Jailers should presume these people are innocent and respect their rights, especially their right to talk freely with their lawyer.  That right should not be altered by arrest or incarceration.  Nevertheless, most Texas criminal defense attorneys don’t trust jail communications in the first place – we know who we’re dealing with, jailers and prosecutors can be sneaky.  We understand that the reality is that in jails, inmates are simply presumed to be guilty by their jailers.

Which means that our communications must be carefully handled.  We have to get the job done with one arm tied behind our backs, because we must operate under the assumption that the prosecution is hearing everything that is being said.  It would be foolish to do otherwise.

(If you think this sounds paranoid, then think again.  As an example, read this ABA Journal story about a Tennessee case where this happened, or read more of the Houston Chronicle expose to learn about the Baby Grace case.)