Maine prosecutors this month dismissed a felony indictment against a man accused of domestic violence after a defense attorney complained that one of the state’s investigators monitored three confidential phone calls the jailed defendant made to his lawyer.
Maine defense attorney Scott Hess raised multiple allegations that his client’s constitutional right to due process was violated, court records show. The allegations included complaints that an investigator with the Kennebec and Somerset District Attorney’s office spoke with his defendant without lawyers present and later monitored phone calls his jailed client made to a lawyer in April 2022.
The district attorney’s office dropped the charges on Sept. 13, court records show. The man was released from jail on the same day.
District Attorney Maeghan Maloney said the case was not dismissed because of the phone calls. She said the attorney hadn’t registered his phone number with the jail’s phone vendor until May after the calls had already been monitored. She didn’t answer other questions from the Monitor.
The case is the latest example of a Maine county jail interfering with confidential calls between a jailed defendant and a lawyer and sharing the recording with law enforcement.
The U.S. Supreme Court has long recognized a defendant’s right to confidential communications with his or her lawyer, known as attorney-client privilege.
Maine jails have adopted some changes to warn if calls are not private, but the sheriffs have stopped short of implementing a system to collect and block attorney phone numbers from being recorded statewide.
Data previously obtained from the Kennebec County Sheriff’s Office show another instance in which an investigator working in the same district attorney’s office had elected to “playback” — a term that means listen to — a recording of a phone call between another jailed defendant and lawyer in 2020. The Maine Monitor reported on that case Sunday.
Jailers routinely record and monitor the phone calls made by people in jail to friends, family and people other than lawyers, but calls to their attorneys are supposed to be off limits to law enforcement or prosecutors. About 1,000 confidential attorney-client phone calls were recorded from June 2019 to May 2020 by six Maine jails and dozens of recordings were shared with police or prosecutors, the Monitor reported.
Craig Etheridge, of Cambridge, Massachusetts, was held in the Kennebec County Correctional Facility for five months after contacting a woman from an altercation in Waterville that led to him being charged with aggravated assault, a felony, and domestic violence assault, a misdemeanor. The Maine Monitor is not naming the woman because she is an alleged victim of domestic violence.
Domestic violence investigators are tasked with monitoring phone calls and video chats of all people charged with domestic violence or sexual assault in the county jail, according to a district attorney’s office policy. If an attorney call is heard, investigators are supposed to stop listening, write down what was heard and alert the prosecutor.
In one call, Mark Fortin, a domestic violence investigator for the district attorney’s office, followed the policy, court records show. He provided a report detailing that he had listened to four seconds of a call Etheridge made to one lawyer, the records show.
However, Hess alleges Fortin did not follow the policy with three additional calls between Etheridge and his hired lawyer, William Kyle Guy of Haverhill, MA. A memo by the Kennebec County Sheriff’s Office that was filed in court with the motion to dismiss lists 20 phone calls Etheridge made that Fortin and one other person “monitored.”
In most other similar situations uncovered by the Maine Monitor, law enforcement listened to recorded conversations between lawyers and their jailed clients using the “playback” feature in the jail’s phone system; it was unclear Tuesday what the Kennebec County Sheriff’s Office meant by “monitored.’’
Guy had registered two of his phone numbers with Securus Technologies — the jail’s phone vendor — as belonging to a lawyer so they would be off limits from the recording system, according to an affidavit by Guy and screenshots submitted to the court.
Guy and Etheridge’s calls lasted a total of 28 minutes though it is unknown how long Fortin monitored each of the three calls from April 2022. During their calls, Guy and Etheridge discussed confidential trial strategy and details about the case, according to the affidavit.
“In this case the defense asserts that the violation of Craig’s Sixth Amendment rights was intentional. The investigator listened to not one, but three phone calls between Craig and his attorney. During those phone calls Craig and Attorney Guy discussed topics such as trial strategy, the complainant’s state of mind, etc. This clearly gives rise to both a ‘realistic possibility of injury,’ as well as conferring a benefit to the state,” Hess wrote to the court.
Hess also alleged that prosecutors and investigators violated Etheridge’s rights multiple times earlier in the case with the delayed release of photos and audio recordings needed for his defense. He also cited investigators’ advice to the woman, who made the complaint of domestic violence to police, that prosecutors were her “lawyer” and resulted in her declining to speak with the defense.
Etheridge’s original bail bond didn’t prohibit him from contacting the woman, court records show. Fortin learned a no-contact order was omitted from the bail conditions in March 2022 when the woman reported she had received multiple derogatory text messages from Etheridge, Fortin wrote in an affidavit seeking an arrest warrant for Etheridge. The warrant was approved.
A Maine judge changed the bail conditions, and didn’t notify Etheridge or his lawyers, according to court records.
Instead, Fortin left voicemails and eventually spoke with Etheridge in March 2022 about the changes to his bail. Etheridge had an attorney at the time who prosecutors should have contacted.
Hess alleges the investigator violated Etheridge’s Sixth Amendment right to counsel by contacting him instead of his attorney and by trying to “elicit additional information” from him during that call, court records show.
The case was dismissed before a judge could weigh in on these allegations. All complaints were deemed moot, according to the docket record.
State lawmakers are in the process of recommending reforms to how Maine jails and prisons facilitate confidential communication between lawyers and incarcerated people. A study group will meet on Oct. 5 and Oct. 19 and submit a report to be considered by the Legislature in 2023.
Samantha Hogan reports on government accountability and the criminal justice system for The Maine Monitor. Reach her with other story ideas: firstname.lastname@example.org.