The Nassau County Sheriff has been slipping the DA’s office attorney-client privileged jailhouse phone calls — which prosecutors then unconstitutionally use to build their cases against the suspects, a new lawsuit charges.
Sheriff Michael Sposato is supposed to turn off the recording equipment at the Nassau County Correctional Facility during a privileged call between lawyer and client, the suit says.
Instead, the officers at the facility routinely tape the phone calls, which are then handed over to prosecutors without any subpoenas, the suit says.
Defense attorney Steven Raiser filed the suit on Monday against the DA and sheriff, saying that on at least one occasion a prosecutor tried to get a call with his client admitted into evidence, but it was shot down by a judge.
Raiser said the DA Kathleen Rice — a Congressional hopeful this year — has left defense attorneys completely in the dark when her office has the tapes, which can affect plea bargains.
“Maybe she doesn’t like something she heard on the recording and decided to offer him 4 years instead of 2,” Raiser said.
The privileged communications could also prompt Rice to investigate new charges against a defendant.
“A defendant may tell his attorney in confidence something and Rice could potentially use that information to launch a new investigation,” Raiser said.
Rice could also target a defense attorney’s witness list.
In April 2013, Raiser became aware of the problem while defending a client charged with tampering with a witness at a bench trial. The defendant was eventually acquitted.
“An assistant district attorney for the Nassau DA indicated, on the record, that she was in possession of recorded conversations between the client and Raiser’s office,” court papers state.
The ADA actually offered the recordings as evidence, but Raiser objected and the judge sided with him based on lack of proper authentication. The underlying issue of attorney client communications was never addressed.
Raiser, whose the president of the Nassau County Criminal Courts Bar Association, sent a letter to Rice expressing his concerns.
In a 2013 response to Raiser, Rice offered no solutions to the problem of having the chief prosecutor review the communications to determine which ones are privileged and which ones are not, the papers say.
“The response clearly indicated, not only would the DA continue to collect such communications, but would continue to use privileged communications contained therein as the Nassau DA’s office unilaterally deemed fit,” the papers say.
A Nassau County DA spokesman responded to the suit by citing the 2013 letter Rice sent to Raiser, insisting that prosecutors do not listen to jailhouse recordings of privileged phone calls.