One year after sparring with Nassau prosecutors over a contested “policy” allowing the District Attorney’s Office to review privileged inmate phone calls, a Mineola attorney will get his day in court.
Steven Raiser, founding partner of the Raiser & Kenniff law firm, has filed suit against Nassau County District Attorney Kathleen Rice’s office and the Nassau County Sheriff’s Department for listening to at least one recorded phone exchange between Raiser and a client incarcerated in East Meadow’s Nassau County Correctional Facility – an alleged violation of the attorney-client privilege.
Whether or not the suit holds water, it’s already having an effect: On Oct. 21, Nassau County Supreme Court Justice Robert Bruno issued a temporary restraining order barring the DA’s office from accessing privileged recordings – except by court order – until Nov. 21.
Bruno’s TRO also stipulates that Nassau Sheriff Michael Sposato and other representatives of his department can’t distribute inmate recordings to the DA’s office without a court order.
Shams Tarek, a spokesman for the District Attorney’s Office, said in a statement that although the DA’s office “never seeks to listen to privileged, confidential calls between attorneys and their clients,” prosecutors will “comply with the practical effect” of the restraining order.
The crux of the issue is an April 2013 felony witness tampering case in which a Nassau prosecutor attempted to enter into evidence a recorded phone call between the defendant, who was ultimately acquitted, and Raiser’s office.
According to Nassau Corrections Officer Joseph Rozzano’s April 5, 2013, testimony before Nassau County Supreme Court Justice George Peck, attorney-client privilege applies when the defendant is speaking with his attorney – but not with the office secretary.
“When counsel answers the phone, and he’s answering, at that point we don’t listen,” Rozzano said at the April 2013 hearing.
Skeptical of the DA’s practice of obtaining inmate recordings, Raiser – then the president of the Criminal Courts Bar of Nassau County – sent an October 2013 letter to Rice’s office accusing Nassau prosecutors of being complicit in a backdoor “policy” to listen to phone calls between inmates and their attorneys’ offices.
In Nassau County Chief Assistant District Attorney Madeline Singas’ Nov. 6, 2013, response to Raiser, the ADA argued that there are exceptions to attorney-client privilege – and because of those “limitations on privilege,” the office disputed Raiser’s “blanket statement that all inmate phone calls” made to attorney’s offices are privileged.
Singas further argued that the East Meadow corrections facility has a system in place in which attorneys can register their telephone numbers with the jail, all but ensuring inmate calls to their lawyers won’t be recorded.
The lawsuit, filed nearly one year to the day after Raiser’s October 2013 letter to the DA and the sheriff, states the policy creates a “chilling effect on all attorney-client phone conversations from the facility” and “stifles [clients’] ability to communicate freely with their attorneys.”
Michael Golio, investigator captain for the Nassau Sheriff’s Department Correctional Center, said Monday that all actions taken by the Sheriff’s Department with respect to both the monitoring and recording of inmate calls and the production of those materials to outside enforcement agencies “is completely respectful of the law in all respects.”
Raiser disagrees. The Mineola attorney contends that Rice and her staff review privileged inmate calls “in the darkness of her own office where nobody could know about it.”
Raiser’s multipronged lawsuit attempts not only to bar the DA’s office from accessing inmate recordings (except by court order), but tries to reform the county’s entire document-sharing system. The lawyer, who specializes in personal-injury cases, claims his intention is to “inject due process into the system.”
His solution: A judge or correctional center employee should review recordings requested by the DA’s office before they’re handed over to prosecutors.
“We tried to broach this issue with her [Rice] and the jail,” Raiser said. “We tried to come to an amicable conclusion so we wouldn’t have to litigate.
“She’s shown no interest in fixing the problem,” he added. “So we had to resort to filing a lawsuit.”
The Nassau DA and the Sheriff’s Department have until Nov. 21 to respond to the petition, according to the County Supreme Court.