Metropolitan News-Enterprise


Tuesday, May 7, 2002


Page 1


State Supreme Court Upholds Government Eavesdropping on Inmates


From Staff and Wire Service Reports


Prosecutors may eavesdrop on inmates to gather criminal evidence, the state Supreme Court ruled yesterday.

The decision clears up an ambiguity in state law and opens the door to greater use of secret recording by authorities in jails and prisons. It also, in effect, vindicates an Alameda County prosecutor who was excoriated by the Court of Appeal for his tactics in securing the conviction of a Martinez woman for the brutal killing of her mother 11 years ago.

Prior law, as interpreted by the 1982 Supreme Court ruling of De Lancie v. Superior Court, permitted wiretapping and eavesdropping on inmates in jail and state prison only if the purpose was get information needed for safety and security, such as preventing escapes.

The Legislature amended the Prisoners’ Bill of Rights in 1994 to make prisoner monitoring more widely available, but until yesterday’s ruling it was unclear whether secretly recorded statements could be used as part of a criminal investigation.

“The amendment reflected the Legislature’s desire to repeal the expansive protections afforded California inmates and replace them with more limited protections available under federal law,” Justice Janice Rogers wrote for the court.

No Recourse

The ruling upholds the First District Court of Appeal, which rejected a bid by Christine Loyd to have the recordings made of her conversations in prison tossed out. But although the Court of Appeal said Loyd had no recourse, it blasted Deputy District Attorney Thomas Rogers for presenting the jury with recordings of jailhouse telephone conversations Loyd had with friends and family members.

“I feel vindicated and exonerated by the Supreme Court opinion,” Rogers said yesterday. “The Supreme Court has held that not only was there no misconduct but also that we were correct in our belief that De Lancie had been overruled by statute.”

A contrary ruling could have sparked a rush of new appeals in California, as monitoring jailhouse communications is becoming commonplace following the Legislature’s 1994 law.

Loyd was in prison for the 1994 killing of Virginia Baily when prosecutors began suspecting her of killing her mother, who was found dead in a bathtub several years earlier. The coroner had ruled Myrtle Loyd’s death an accident, but Rogers and his team saw similarities in the two deaths.

Loyd was charged, and while in a Dublin jail awaiting trial, Alameda County prosecutors instructed guards to tape her telephone communications and all non-telephonic communications with visitors except those with a lawyer. A lower court condemned the taping but upheld the convictions on grounds they did not assist in winning a conviction.

‘Innocent’ Woman

Alan Schlosser, an American Civil Liberties Union attorney, said it was unfair for Loyd’s communications to be monitored because she was an innocent woman awaiting trial and should have been treated as such. He noted that defendants who make bail cannot be monitored like those in jail.

“To say, without any warrant, prosecutors can go on a fishing expedition and listen in on family and friends to find anything incriminating seems to violate the state’s strong protection for privacy,” Schlosser said.

Meanwhile, the attorney-client privilege in the prison context is not absolute. Authorities may monitor their communications under court supervision if, for example, they suspect the attorney is aiding and abetting criminal activity.


Copyright 2002, Metropolitan News Company