Lawyers clash at Andersen hearing -- Judge orders jail to quit taping lawyer-client cellular calls
At a contentious omnibus hearing Friday, an attorney for murder suspect Kenneth Andersen submitted a flurry of motions, and lambasted the Becker County Sheriff's Department and County Attorney's Office for taping confidential attorney-client cell phone calls.
Andersen, 34, of Waubun, was indicted by a Becker County grand jury in September for first-degree, premeditated homicide in the April 13 shooting death of Chad Swedberg, which occurred while he was processing maple syrup near his home in rural Ogema.
Sheriff's Captain Joe McArthur on Friday testified that the jail did indeed tape cell phone calls between Andersen and his attorneys.
But McArthur and Bureau of Criminal Apprehension special agent Dan Baumann -- a lead investigator on the case -- testified that they never listened to those conversations and deleted them as soon as they realized they were calls that fell under the attorney-client privilege.
Baumann said he then routinely gave an edited version of the tape -- with the attorney-client calls removed -- to the Becker County Attorney's Office.
Assistant Attorney General Al Zdrazil is handling prosecution of the case, along with County Attorney Mike Fritz.
Defense attorney Rory Durkin, of Giancola Law Office, Anoka, was livid about the cell phone taping.
"Mr. Andersen and I have felt for a long time that our attorney-client privilege has been violated by the state," Durkin told District Judge Peter Irvine.
"We'll talk to a witness and they'll have talked to them an hour before."
The state found out potential witness information -- and interviewed those people -- after listening to jail conversations between Andersen and his family and friends, not his attorneys, Baumann testified.
Durkin told reporters after the hearing that having his cell phone calls taped was "mind boggling. I've never experienced anything like that... It's so fundamentally wrong and outrageous, all I can do is chuckle. It's chilled my ability to talk to my client and for him to participate in his own defense."
He asked the judge to lower Andersen's bail from ($1 million) to $100,000 or $200,000, so he could get out and participate in his defense.
Judge Irving declined to immediately lower bail, but he did order a change in jail policy.
"No (attorney-client) calls will be recorded again," he said softly, but angrily, from the bench, looking pointedly at Zdrazil. "The jail will stop doing that immediately.
"Whatever happens from here on, your calls are private," he said to Durkin.
The jail routinely records inmate calls for possible monitoring, McArthur testified. Usually calls are monitored at random, but an inmate may also be targeted for attention if jailers suspect he is looking to escape, to hurt somebody or commit suicide, McArthur added.
"We block attorney office numbers (from being recorded), but we don't block cell phone numbers for anybody," he testified. "It goes back to jail security reasons -- those numbers could be used for reasons not intended."
On Dec. 3, the jail did block six phone numbers at Andersen's request -- three land lines to his attorneys' office and three cell phone numbers supplied by his attorneys.
Two days later the jail unblocked the cell phone numbers, but did not inform Andersen or his attorneys those calls were now being recorded. Jailers are instructed to quit listening if they come across an attorney-inmate call while doing random monitoring, McArthur said.
"I made a decision based on the policy of the jail," McArthur testified. The phone policy at the jail changed last year after a software update, he added. Reliant, the company that runs the jail phone system, formerly would block phone numbers at an inmate's request, after making sure they were legitimate attorney numbers.
Now, McArthur said, Reliant is still involved, but "the jail goes in itself and determines whether a number is blocked or not."
Cell phone numbers are not blocked because there is no way to know who is using a mobile phone and for what purpose, he said.
Andersen's calls were monitored while he was in jail in Becker, Mahnomen and Roseau counties.
"I immediately terminate listening to that call if it becomes apparent it's from a lawyer or (defense) investigator," Baumann said.
After making a clean tape for the prosecution team, he said he always physically destroyed any jail CD with attorney-client cell phone recordings, to protect confidentiality.
After the hearing, the defense attorney, Durkin, was openly skeptical that the privileged calls were not listened to, and said he doesn't believe that the taping will stop. He found out about the taping after it was disclosed in a letter to him from the sheriff's department, he said.
"This is an adversarial process," he said after the hearing. "If we're going to battle, let's battle with honor -- I don't think there's been any honor displayed by the Becker County Sheriff's Department."
Prior to the cell phone issue, Durkin grilled Baumann about an affadavit for the first of three search warrants executed on Andersen's property, inferring that he left out information that might make a judge unwilling to sign the warrant.
Glen Fladmark, a defense investigator, testified that at least one potential witness wouldn't talk to the defense because "the cops told me not to talk to you guys." He did meet with the defense after a third party intervened. Another witness was also reluctant to talk to the defense, until the prosecution cleared up that it was OK.
Durkin accused the prosecution of dragging its feet on disclosing requested information, including 911 tapes.
"I was just handed a manila folder 10 minutes before the start of this hearing with information I've been requesting since October, November of last year ... Some of this stuff I've been trying to get since August," he told the judge.
Zdrazil objected to "the characterization that we have not been forthcoming in our disclosure." The prosecution has provided some 2,500 pages, along with videotapes and perhaps 100 compact discs, he added.
The 911 tapes could be key to the defense, Durkin said. "Now to get the runaround on them -- what am I supposed to think?"
"The 911 tapes have been prepared and have been sent," Zdrazil said.
"There is no reason not to disclose promptly," said Judge Irvine. "I don't ever want to hear again that disclosure was not produced promptly."
Zdrazil and Durkin sparred repeatedly during the four-hour contested omnibus hearing, which included frequent trips to the bench to confer with the judge, and one extended session in chambers.
After the judge ordered the jail to quit recording attorney-inmate cell phone calls, Zdrazil noted that Durkin had not even asked that attorney calls be blocked from automatic recording until December.
"It's disingenuous to be as self-righteous as he is right now," Zdrazil told the judge.
Durkin said he followed the procedure as soon as he learned what it was. "Most jails, you don't have to ask," he said.
The defense asked for dismissal because of the taped cell phone calls and failing that, a change of venue, contending that Andersen can't get a fair trial in Becker County because of excessive media coverage.
Durkin also submitted a legal demand for a speedy trial, which means the trial must start in 60 days.
Irvine gave the defense team two weeks to submit written motions, and the prosecution will have a week after that to respond in writing.
At that point the 60-day rule kicks in for the speedy trial demand.
Irving said it may be difficult both to change the venue and meet the speedy trial demand, since the trial will require four to five weeks of courtroom time, in a different county, where it may be difficult to quickly clear court calendars. He will make a determination after written motions are finished, however.