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Becker County Jail wiretapping case settled for $104,000

A trio of plaintiffs, including convicted murderer Kenneth Andersen and his one-time lawyer, have settled with Becker County's insurance cooperative for $104,000.

A large percentage of the proposed settlement, perhaps as much as three-quarters, is expected to go to pay the group's legal firm, Sprenger and Lang of Minneapolis.

The settlement includes the dismissal of the lawsuit, with no admission of legal responsibility by the county, said Becker County Attorney Mike Fritz.

The civil suit, filed in federal court in Duluth, alleged that the Becker County Jail violated state and federal wiretapping laws by recording cell phone calls between jail inmates and their attorneys.

Such calls are not normally recorded, but a policy change at the jail led to attorney-inmate cell phone calls being recorded, though such conversations were supposedly erased as soon as jail personnel released they were listening to privileged communication.

Becker County has been represented in the civil case by its insurance agency, the Minnesota Counties Intergovernmental Trust. Its attorney in the case is John Iverson of Minneapolis, who could not be reached for comment.

The plaintiffs are Kenneth Andersen, his one-time attorney, William K. Bulmer II (who left the law firm representing Andersen midway through his trial) and Del Dee Holm.

Fritz said the sweeping civil suit originally contained 11 complaints and named Becker County and the Becker County Jail, as well as personally naming Sheriff Tim Gordon and head jailer Joe McArthur. It claimed violations of the first, fourth, fifth and sixth amendments.

All were dismissed in summary judgment, except for two claims involving alleged violations of state and federal wiretap statutes.

They impose a penalty of up to $100 per day that the wiretap was in place or $10,000, whichever is less.

They also allow for attorneys fees, and Fritz said Sprenger and Lang originally put in a claim for at least $325,000, before agreeing to the $104,000 at a court-ordered settlement conference on Monday.

"It was essentially an economic decision," Fritz said. "It would have cost the (insurance) trust at least $50,000 to go forward with it."

The issue first came up publicly in March of 2008 during hearing prior to the Andersen murder trial.

Sheriff's Captain Joe McArthur 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 handled prosecution of the case, along with County Attorney Mike Fritz.

At the time, 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."

Judge Irving immediately ordered a change in jail policy.

"No (attorney-client) calls will be recorded again," he said from the bench. "The jail will stop doing that immediately.

"Whatever happens from here on, your calls are private," he said to Durkin.

The jail routinely recorded inmate calls for possible monitoring, McArthur testified. Usually calls were monitored at random, but an inmate was also targeted for attention if jailers suspected he was 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 were 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 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.

After the policy change, McArthur said, Reliant was still involved, but "the jail goes in itself and determines whether a number is blocked or not."

Cell phone numbers were 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 would stop. He found out about the taping after it was disclosed in a letter to him from the sheriff's department, he said.

Andersen was ultimately convicted of first-degree murder in the case. All such convictions are reviewed by the Minnesota Supreme Court, which has not yet made a determination in the Andersen case.