by Douglas Ankney
When a jail is found to violate a detainee’s Sixth Amendment expectation that communications with his attorney are privileged, courts often shrug it off as harmless; after all, the detainee won’t raise the objection unless what was discussed could undermine his defense, and in that case courts are loathe to let the guilty go free.
But a nation of laws must abide by all of them, no matter the result. So it was a welcome surprise when the Supreme Court of Nevada on March 7, 2024, refused to take the easy way out and agree with a lower court that a detainee who violated jail phone policy to make a legal call had waived attorney-­client privilege for it.
The Court’s ruling came in an appeal by former Clark County Detention Center detainee Jamal Jacqkey Gibbs. In April 2021, he was 29 and at the Las Vegas apartment of his girlfriend when her daughter returned from a visit with the child’s father, Jaylon Tiffith, 29. The mother then got in a fight with Tiffith’s new girlfriend, who was also not named. Both Tiffith and Gibbs—recently released from state prison after completing a 10-­year term for a 2008 gang shooting when he was 16—intervened; in the aftermath, Tiffith lay fatally shot.
Gibbs was charged with second-­degree murder with a deadly weapon and convicted in the state’s Eighth Judicial District Court for Clark County. While detained to await trial, he violated jail phone policy by using another detainee’s phone access code to place a call. He violated policy again when the party receiving the call connected Gibbs with a defense investigator. During the ensuing conversation, Gibbs revealed that he was present at the scene of the shooting—something he had not admitted to police, hoping to mount a defense of mistaken-­identity chalked up to the melee the two women had begun.
The call was recorded, and the State moved to admit the recording at Gibbs’ trial. Gibbs objected, claiming it was protected by attorney-­client privilege. The district court disagreed, reasoning that Gibbs waived the privilege when he violated jail phone policies prohibiting sharing phone access codes and using three-­way calling. Gibbs’ trial strategy then collapsed, and a jury convicted him. He appealed.
The Supreme Court began its review by noting that the privilege is codified in state law, NRS 49.095, which protects “confidential communications between a defendant and the defendant’s attorney or a representative”—including a defense investigator. Protected communications must be made for “rendition of professional legal services, and be confidential,” as held in Wynn Resorts, Ltd. v. Eighth Jud. Dist. Ct., 399 P.3d 334 (Nev. 2017). Moreover, a defendant asserting the privilege “bears the burden of showing that the evidence is privileged and that the defendant has not waived that privilege,” per Canarelli v. Eighth Jud. Dist. Ct., 464 P.3d 114 (Nev. 2020).
The Court noted examples of communications that generally are not privileged include those taking place “in the presence of a third party,” according to Nev. Tax Comm’n v. Hicks, 310 P.2d 852 (Nev. 1957). However, after Lisle v. State, 941 P.2d 459 (Nev. 1997), using a third party merely to connect or disconnect a call does not act as a waiver. In Gibbs’ case, a third party connected the call, but nothing in the record indicated whether the third party listened to or participated in the conversation, the Court said. Some telecommunication carriers allow hosts of three-­way calling to disconnect and leave the remaining parties connected, but the district court failed to hold an evidentiary hearing to determine the conduct of the third party during the conversation.
Further, Gibbs’ violation of jail phone policy by using another detainee’s access code did not “inform the analysis of whether a defendant intended for an attorney-­client conversation to be confidential or whether the privilege [wa]s waived,” the Court said. Accordingly, Gibbs’ conviction was reversed and his case remanded for a new trial. See: Gibbs v. State, 543 P.3d 1185 (Nev. 2024).  

Additional source: Las Vegas Review-­Journal