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Judge temporarily bars Nassau DA's office from access to taped calls of inmates and their lawyers

Nassau District Attorney Kathleen Rice speaks in Mineola

Nassau District Attorney Kathleen Rice speaks in Mineola on Oct. 25, 2012. Credit: Howard Schnapp

A Nassau judge Tuesday temporarily banned the district attorney's office from obtaining recorded jailhouse conversations between inmates and their lawyers without a court order.

The decision by state Supreme Court Justice Robert A. Bruno came on the day a lawsuit was filed on behalf of three inmates at the Nassau County jail alleging that obtaining and listening to the calls is routine and violates their constitutional rights.

Authorities in the office of District Attorney Kathleen Rice denied they listen to privileged calls between inmates and their lawyers, and said the ruling will impede legitimate criminal investigations.

The temporary restraining order issued by Bruno requires that Rice get a court order before Sheriff Michael Sposato can turn over the recorded conversations, which under state law are confidential in most circumstances.

"To me, the fairest thing is not to have people's rights violated by having confidential conversations turned over," Bruno said in court. "Should I just say, 'Turn over everything,' and let people's rights be violated?"

Robert Schwartz, the district attorney's deputy bureau chief of appeals, denied the office listens to privileged conversations. He said the jail's recording system is designed to prohibit the recording of calls between attorneys and clients. While the district attorney's office listens to jailhouse calls as part of investigations into witness intimidation, domestic violence and other cases, Schwartz said, attorneys are trained to "stop listening immediately" if they recognize an attorney-client call.

Schwartz told Bruno that any restriction to the office's access to jailhouse phone calls, which he said are a universally accepted investigatory tool, would be "unprecedented" and have a "dramatic impact on how law enforcement operates in this county."

Mineola-based defense attorney Steven Raiser filed the suit, which alleges Sposato and Rice had a "secret deal" to share the recordings. It also asked for permanent judicial oversight.

Raiser said in the suit that he first became aware of the issue in 2013, when an assistant district attorney "indicated" she had a recording between his client and his law office she wanted to "utilize" as "direct evidence" at trial. The recording was ultimately not admitted as evidence, according to the suit.

In a statement Tuesday, Sposato said his department follows "all legally required safeguards" regarding the monitoring and recording of inmate calls. The jail notifies inmates that calls are monitored and recorded, and warning signs are posted "near the locations of the inmate telephones."

He said "in the unlikely event that a call to an attorney's office was inadvertently being recorded for whatever reason, that office can simply terminate the call and contact the Sheriff's Department."

The district attorney's office has until Nov. 21 to submit a written response to the court.

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