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Prosecutors scooped up recordings of phone conversations between a defense attorney and his client at the Metropolitan Detention Center among the thousands of jail calls collected by the 2nd Judicial District Attorney’s Office, a judge said Friday.
“There seems to be really no dispute that there are attorney-client privileged communications on the files that were disclosed,” District Judge Brett Loveless said after hearing hours of testimony this week.
Albuquerque attorney William Cooley alleges that the DA’s office obtained 133 recordings of jail calls he had with his client in violation of constitutional protections for attorney-client communications.
Cooley told the judge in an unusual two-day hearing that he obtained recordings of the attorney-client conversations from the DA’s office, which provided the audio files on thumb drives on Aug. 23 and Sept. 9 as part of the discovery process.
Cooley contends the phone calls gave prosecutors insight into his strategy for defending his client and is asking the judge to disqualify the DA’s office from prosecuting the criminal case.
Assistant District Attorney Gabriel Kallen told the judge that he listened to none of the attorney-client calls and the fact that the DA’s office has them doesn’t amount to a conflict of interest.
“Whether I actually listened to them is an important fact for the court to consider, and I did not,” Kallen said Friday. Kallen also contends that Cooley didn’t take the proper steps to prevent MDC from recording his calls.
Loveless asked attorneys to submit written arguments next week and ordered the DA’s office not to listen to any jail calls until the issue is resolved.
Bernalillo County Metropolitan Detention Center and other jails and prisons in New Mexico routinely record phone calls between inmates and outside parties. Those recordings often are introduced as evidence in criminal trials.
But conversations between defendants and attorneys are protected by attorney-client confidentially under the US Constitution and state and federal laws, Cooley contends.
Cooley represents Stephen Bailey, 26, a former driver for an Albuquerque towing company who was accused in May 2021 of drunken driving, fatally striking a pedestrian and fleeing the scene in his employer’s tow truck. Jonathan Rosales, 26, was found dead at the scene in the 7600 block of Isleta SW, near Interstate 25.
Bailey told the judge that he was dismayed to learn in August that the DA’s office may be listening to his calls with Cooley.
“I haven’t been able to effectively contact my attorney to discuss fair defense for my case,” Bailey told the judge. “It’s been very stressful and it doesn’t seem fair. I feel like it’s been a violation of my rights.”
Bailey has remained in MDC since May 2021 on charges of vehicular homicide while intoxicated and leaving the scene of a fatal accident.
Cooley said the COVID-19 pandemic made it difficult to visit MDC and that he and his client have had hundreds of phone conversations since Bailey’s arrest.
The hearing included a testy exchange between the two attorneys on Thursday after the judge swore in Kallen as a witness and Cooley questioned him.
When Cooley asked how the DA’s office obtained recordings of the jail calls, Kallen replied, “that is work product that is not available.”
Judge Loveless asked Kallen to explain his response. Kallen responded that “internal policies and procedures of my office are work products. Mr. Cooley has been asking me for a long time for specifically who I asked for jail calls from, how does that request process work, etc. And I’m not disclosing that information.”
The exchange between the attorneys at one point became so contentious that the judge intervened.
“Stop,” Loveless said. “These are extremely serious allegations. Essentially what the defense has contended is that the state is private to information protected by the Sixth Amendment to the United States Constitution. It’s not to be taken lightly.”
Loveless also ordered Kallen to explain how he obtained the calls.
“How I obtain all jail calls, these included, is I submit a request to (the Criminal Strategies Unit) and identify the defendant, his MDC number and the date range of calls that I want,” Kallen said.
Second Judicial District Attorney Raúl Torrez created the Crime Strategies Unit in 2018 to help persecute criminal networks. The unit includes data analysts and sworn law officers who use technology such as phone records to help investigate crimes.
Kayleigh Otero, a member of the Crime Strategies Unit, testified Friday that her office routinely pulls recordings of MDC jail calls without a warrant by logging into MDC’s system through a portal.
In August, the unit extracted more than 3,900 of Bailey’s jail calls, 481 tablet text messages and other data dating back to May 2021, Otero testified.
Kallen said in a motion that he requested the recordings after learning that Bailey “may have told one or more witnesses not to testify,” according to court records.
Kallen told the judge that he was unaware that any of those recordings contained attorney-client phone conversations.
“Typically, we don’t get attorney-client jail calls because the attorney notifies MDC that those calls should not be recorded,” he said.
Kallen contends that MDC has a process for excluding attorney-client phone calls from its recording system by providing their phone numbers to the jail, but that Cooley didn’t take the required steps.
“Mr. Cooley never placed himself on the approved contact list with MDC, notifying them that those calls should not be recorded,” Kallen told the judge.
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