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Lawsuit filed over taped calls at the Becker County Jail

The law firm of Sprenger and Land says it has filed a civil rights class action lawsuit in U.S. District Court against Becker County and several law enforcement officials.

The lawsuit alleges that Becker County illegally monitored and recorded confidential and privileged telephone calls between inmates at the jail and their attorneys.

According to the complaint, inmates of the Becker County jail and attorneys representing inmates are informed in writing that attorney-client telephone calls are confidential and are not subject to monitoring or recording.

Based on this written guarantee of privacy and attorney-client privilege, inmates and their attorneys have used the jail's telephones to discuss confidential details of the inmates' cases, including defenses and legal strategies.

The complaint alleges that information obtained from the illegal monitoring and recording of attorney-client privileged telephone calls may have been used against the inmates during the county's prosecution of the inmates' criminal cases.

The plaintiffs, a former inmate and two criminal defense attorneys, allege that the Becker County jail's practice of monitoring and recording attorney-client privileged telephone calls violates their constitutional rights, and both federal and state law.

"The right to the assistance of an attorney when a person is charged with a crime and the right to have private, confidential communications with that attorney are basic rights protected by the U.S. Constitution," said Mara Thompson of Sprenger and Lang, one of the attorneys representing the plaintiffs.

"The Becker County jail's practice of monitoring and recording attorney-client privileged communications violates these fundamental rights."

Thompson could not be reached for comment, so it's not clear who the former inmate is that she represents.

The only such incident that has received publicity came out during the Kenneth Andersen murder trial proceedings.

Becker County Sheriff's Capt. Joe McArthur testified that the jail routinely taped cell phone calls to inmates, including conversations with their attorneys.

In Andersen's case, those tapes were given to Bureau of Criminal Apprehension special agent Dan Baumann, who testified that he never listened to attorney-client privileged calls. Instead, he erased them as soon as he realized what they were. He did listen to calls from Andersen's friends and relatives, he said.

At a March 9 omnibus hearing before the start of the trial, District Judge Peter Irvine ordered the jail to stop recording inmate-attorney cell phone calls.

"No (attorney-client) calls will be recorded again," he said softly, but angrily, from the bench, looking pointedly at Assistant Attorney General Al Zdrazil, who headed up prosecution of the case. "The jail will stop doing that immediately ... Whatever happens from here on, your calls are private," he said to defense attorney Rory 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 testified, 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.

Becker County Sheriff Tim Gordon said Thursday he has not yet seen the class action lawsuit, and said it is unusual that a suit would be publicized before all parties were served.

"I can't comment on it because I haven't seen it," he said.

He noted that a Minnesota appeals court declined to overturn Andersen's murder conviction in an appeal based in part on the taped cell phone calls.