Public defender pushes for ban on secretly taping young defendants

At an Alameda County Superior Court hearing in downtown Oakland earlier this month, youth advocate Leo Mercer wore on his hoodie a sticker that read “Sheriffs are not above the law.” He waited without much hope to see whether Judge Don C. Clay would approve a motion filed by Brendon Woods—the first African-American public defender in Alameda County history—that would order the Alameda County Sheriff’s Office to immediately stop recording or eavesdropping on private conversations between young defendants and their attorneys.

On August 20, Woods filed a motion alleging that the sheriff’s office illegally recorded at least one privileged conversation between a juvenile and his attorney—which by law is supposed to be private. Woods argued it was possible that these recordings have been going on in the interview room at the Eden Township substation since January, when a new law went into effect mandating that young clients speak with an attorney before being interrogated by law enforcement officers.

In his court filing, Woods emphasized the seriousness of the crime he believes the sheriff’s office committed. “The recording revealed that the sheriff’s department routinely violates one of the most basic elements of due process, the right to consult privately with an attorney,” he wrote.

A spokesperson from the sheriff’s office, Sergeant J.D. Nelson, declined to say whether a crime had been committed, arguing it was up to the Alameda County District Attorney’s Office to determine this by pursuing charges against individual officers. When asked what the department was doing to ensure that this didn’t happen again, he said all personnel had been retrained, and the fact that “someone could go to jail over this—that should be enough of a deterrent.”

Mercer was one of about 20 community members representing the Justice Reinvestment Coalition of Alameda County standing outside the Rene C. Davidson Courthouse on September 7, hoping that the judge would grant Woods’ motion to bar law enforcement officers from taping in the future. Mercer said he’s worried that the sheriff’s office is violating the rights of minors and acting with disregard for the law. “[The sheriffs] are recording conversations they’re having with their lawyers, knowing that it’s illegal,” he said. “And then they go on record saying that they did that. So there’s some egregiousness going on, to where they feel they can break the rules as necessary. And that’s a double standard, right, because in a parallel world where I was wearing the uniform, and I did something like that, I would be held to the fullest extent of the law.”

Today Mercer is a community leader, a musician and an activist. But, he said, not too long ago, he was a young person navigating the justice system, which showed him little leniency. He believes Woods is uniquely situated to take a stand against the sheriff’s office. “Any other counsel member, I would feel more they were an ally,” Mercer said. “But they’re not a person of color, so they don’t really feel what we’re going through. I think Brandon has been in enough rounds to understand the people that’s on the bottom, right?”

Woods filed the motion after receiving from the district attorney’s office a secret recording that had been discovered of Woods and his client discussing his case. The office also turned over to him body camera footage obtained by The San Francisco Chronicle showing two sheriff’s office employees talking about routinely and secretly recording conversations between juveniles and their attorneys. (The video was also posted online by The San Jose Mercury News.)

A man the Chronicle identified as Sergeant James Russell allegedly speaks about the recordings while being taped by his own camera, while a man the publication identified as Lieutenant Timothy Schellenberg looks on, holding a coffee mug.

“How is it, how is that not privileged information?” the second man asks.

The first responds, “Well, it is, but like, it just doesn’t get admissible.”

At one point on the tape, he defends the action by saying that it could help the sheriff’s officers protect juvenile defendants. “What if [the attorney] decides to molest him in there?” he says jokingly. “Then we’re on the hook.”

When Woods first received the secret recording, he said he thought it was a mistake. When he realized it was intentional, he said, he was shocked. “It was absolutely outrageous,” Woods said. “We want to trust and believe that law enforcement is doing their job, and they’re abiding by the law. But this is a clear case where they were not.”

It is a felony in California—punishable by up to three years in prison—for a third party to record privileged conversations between attorneys and clients. Woods said that the case against his client was thrown out by the district attorney’s office after the discovery of the recording.

While Nelson declined to confirm the names of any officers involved, he said that the two officers seen in the body camera footage discussing the taping are still employed at the department, but are “working in a different capacity.”

Woods hoped that his motion would result in the court issuing an order barring the sheriff’s department from violating attorney-client privilege in the future by recording or eavesdropping on privileged conversations. In his motion, he referred to a precedent-setting 1994 ruling, Morrow V Superior Court, in which a prosecutor instructed her investigator to record a conversation between Morrow, a young plaintiff, and his attorney. The judge in that case issued a stinging rebuke, and dismissed the case against Morrow.

“Eavesdropping on an attorney-client conversation is inappropriate anywhere and cannot be tolerated. We would be remiss in our oaths of office were we to discount or trivialize what occurred here,” the judge wrote. “The judiciary should not tolerate conduct that strikes at the heart of the Constitution, due process of law, and basic fairness.”

A spokesperson from the Alameda County’s District Attorney’s office said they would be reviewing all juvenile cases submitted by the sheriff’s department since January to determine if any others were compromised.

But prior to the hearing, Alameda County District Attorney Nancy O’Malley issued a statement pushing back against Woods’ motion, saying it is redundant because there is already a law in place prohibiting the practice. “It assumes that all officers will break the law unless there is a lawful order not to break the law,” she wrote.

To that, Woods responded in an interview with Oakland North, “Great, but it occurred. And if you listen to the officers’ body camera footage, he doesn’t say, ‘I’ve done this before.’ He said, ‘We have done this before.’ That’s implying that this is a problem within the sheriff’s office, and that it occurred multiple times. So they know it’s the law—or they should know it’s the law—but they’re still doing it. So hearing it from a judge, ordering them not to do it, has a certain amount of weight and importance. That’s why we did it.”

Still, as Mercer had feared, Woods’ motion to bar the practice was dismissed. Judge Clay said he was putting the sheriff’s department “on notice,” but added there wasn’t yet clear evidence that the problem was widespread. “The question is: Is it a representation of a systematic issue?” Clay asked in court, ultimately leaving it up to the district attorney’s office to decide whether or not to press criminal charges against the officer caught admitting to the practice on tape.

Sergeant Ray Kelly, another spokesperson from the sheriff’s office, said that Judge Clay made the right decision. “The judge understood it pretty clearly that it was isolated to this particular individual, and that it was not a systemic, agency-wide issue,” he said, stressing that department staffers are doing everything they can to ensure something like this wouldn’t happen again, and that there was an internal investigation going on to figure out what went wrong.

“It doesn’t appear to be malicious. But obviously we internally want to know what the reasoning was behind it,” Kelly said, after declining to state whether the officer caught on tape had been disciplined. “Was there a gap in training where he just didn’t realize what he was doing was wrong?”

Mercer said he was disappointed by the judge’s decision. “It’s very disheartening going inside a courtroom, because I know that they’re going to do things like that,” Mercer said. “You’ll give a very compelling case, right, and it will make a whole bunch of sense, and then the judge will deny it. And, oh man, that’s upsetting.”

Woods also said he would have preferred a different outcome but added, “I do give the judge credit for his stern warnings and placing the sheriff’s office on notice.”

Woods said he isn’t able to give specific details about his next steps, except to say that he intends to find out whether the illegal recordings occurred more than once, and a put a stop to the practice if they did. “In an ideal world,” Woods said, “what I would be hoping for is that are no other recordings, that this is an isolated incident. And if it’s not an isolated incident, I hope that we get evidence with regards to it occurring on a more wide scale, and we can put a stop to it.”

Mercer said the protesters plan on pressuring the district attorney to press criminal charges against the sheriff’s department, and to encourage the public to do the same. “Write letters, and make phone calls,” he said. “I know that sounds a little uphill, but it’s important.”

Mercer said he feels that the stand Woods took was an important one, no matter what happens next. “Sooner or later, we’re going to change the dynamic,” he said.