Suit Filed Over Minnesota Jail’s Secret Recording of Privileged Phone Calls

by Matt Clarke

On October 15, 2008, a Minneapolis law firm filed a civil rights suit in federal district court alleging that attorney-client phone calls from the Becker County Jail in Detroit Lakes, Minnesota were secretly recorded and sent to law enforcement officials.

Kenneth E. Andersen was arrested for murder and incarcerated at the jail from June 2007 to June 2008. He was given an orientation handbook when he arrived at the facility that stated phone calls were recorded and monitored except for attorney-client calls, which were not recorded or monitored. No further information on procedures for securing privileged phone calls was provided to Andersen or his attorneys.

Andersen’s initial attorney was based 200 miles from the jail. She and her investigator used phone calls to question Andersen about the case, inform him of the progress of their investigation and plan trial strategy. After four months of privileged phone discussions, they began to suspect that their phone calls were being recorded and provided to law enforcement personnel.

On multiple occasions, law enforcement officials interviewed witnesses a few hours before they arrived at planned witnesses interviews that had been discussed in phone calls with Andersen. Andersen also discovered that it was an open secret among prisoners at the jail that privileged calls were recorded and the recordings given to law enforcement personnel.

Andersen’s attorneys learned that the jail had an unwritten policy of only excluding phone numbers from monitored calls that were submitted by attorneys and verified by the phone service provider and jail staff. Neither attorneys nor prisoners were routinely informed of this unwritten policy. Andersen’s attorneys submitted six numbers and confirmed that they had been added to the “Do Not Record” list. However, a few days later, three of the numbers were removed from the list without notification. This was allegedly due to another unwritten jail policy that disallowed cell phone numbers.

The attorneys set up a sting, leaking false information via a phone call to Andersen. Law enforcement personnel reacted to the leaked information. The attorneys then filed motions raising violations of attorney-client privilege in Andersen’s criminal trial.

At an April 14, 2008 hearing in the criminal case, jail officials admitted they automatically recorded all prisoner phone calls except calls to numbers on the approved attorney list, and that they shared the recordings with law enforcement officers. They also admitted taking the attorneys’ cell phone numbers off the list without informing them, and said it was yet another unwritten policy not to allow attorney investigators’ phone numbers to be included on the list.

One Bureau of Criminal Apprehension special agent admitted that he monitored all of Andersen’s recorded phone calls, but said he stopped listening if they appeared to be with attorneys. He said he routinely provided recordings of the non-privileged phone calls to prosecutors. The way he determined whether a call was from an attorney was by listening to it. The judge was outraged, and ordered the jail to stop recording privileged attorney-client phone calls.

Andersen and St. Louis Park attorney William K. Bulmer II, who assisted in Andersen’s defense, filed a civil rights suit in federal district court under 42 U.S.C. § 1983 and various state statutes. They alleged violations of 1st, 5th, 6th and 14th Amendment rights and state law by the secret recording of attorney-client phone calls. The lawsuit seeks class-action status and requested a temporary restraining order and preliminary injunction enjoining Becker County from recording privileged phone calls, and ordering jail officials to inform prisoners and attorneys of the unwritten policies. The suit also requests unspecified monetary damages, attorney fees and costs.

Andersen and Bulmer are represented by Minneapolis attorneys Jeffery A. Abrahamson, Mara R. Thompson and Dan Bryden, and attorney Steven M. Sprenger of Washington, D.C. The motion for a temporary restraining order was denied; the case is scheduled to go to trial in October 2009. See: Andersen v. Becker County, U.S.D.C. (D. Minn.), Case No. 0:08-cv-05687.

PLN has previously reported the improper recording of attorney-client calls by jail officials in California, Florida and Texas [See: PLN, Aug. 2008, p.32].

Additional sources: Sprenger & Leng press release dated 10-15-08, DL-online

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