The People, Respondent,v.Marcellus Johnson, Appellant.BriefN.Y.February 16, 2016Appeal No. 2015-00070 COURT OF APPEALS State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MARCELLUS JOHNSON, Defendant-Appellant BRIEF BY BROOKLYN DEFENDER SERVICES as AMICUS CURIAE ALEKSANDR B. LIVSHITS ADAM ROSE Of Counsel LISA SCHREIBERSDORF Brooklyn Defender Services 177 Livingston Street, 7th Floor Brooklyn, NY 11201 Tel: (718) 254-0700 Fax: (718) 254-0897 Fried, Frank, Harris, Shriver & Jacobson LLP 1 New York Plaza, New York, NY Tel: (212) 859-8524 Fax: (212) 859-4000 December 30, 2015 Appellate Division First Department Criminal Court, New York County, Indictment No. 4443/11 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTEREST OF AMICUS .......................................................................................... 1 PRELIMINARY STATEMENT ............................................................................... 2 ARGUMENT ............................................................................................................. 8 I. The prosecution violates defendants' Sixth Amendment rights when it monitors pre-trial detainees' telephone calls because the monitoring enables the prosecution to obtain advance knowledge of the defendants' legal strategies and deprives them of a fair trial. ...................................................... 8 II. Prosecutors' monitoring of inmates' telephone calls is unconstitutional under the Supreme Court's framework for analysis of Sixth Amendment violations ........................................................................................................ 13 CONCLUSION ........................................................................................................ 22 TABLE OF AUTHORITIES Statutes 40 RCNY § 1-lO(h) .................................................................................................... 3 Cases Dupree v. Thomas, 946 F.2d 748 (11th Cir. 1991) .................................................. 17 Faretta v. California, 422 U.S. 806 (1975) .............................................................. 20 Gideon v. Wainwright, 372 U.S. 335(1963) .............................................................. 8 Kuhlman v. Wilson, 477 U.S. 436 (1986) ............................................................... 14 Maine v. Moulton, 474 U.S. 159 (1985) ....................................................... 9, 18, 19 Massiah v. United States, 377 U.S. 201(1964) ................................................. 14, 17 People v. Cardona, 41N.Y.2d333 (1977) ........................................................ 15, 16 People v. Corse, 73 A.D.3d 1208 (2d Dept. 2010) .................................................. 17 People v. Johnson, 120 A.D.3d 1154 (1st Dept. 2014) ......................................... !, 7 Skynet Electronic Co. v. Flextronics International Ltd., 2013 U.S. Dist. Lexis 176372 (N.D. Cal. 2013) ........................................................................................ 9 United States v. Brink, 39 F.3d 419 (3d Cir. 1994) ................................................. 17 United States v. Henry, 447 U.S. 264 (1980) ................................................... 14, 18 United States v. Mitan, 2009 U.S. Dist. LEXIS 88886 (E.D. Pa. 2009) .... 10, 12, 13 United States v. Mitan, 212 U.S. App. LEXIS 19877 (3d Cir. 2012) ..................... 12 ii INTEREST OF AMICUS Brooklyn Defender Services ("BDS") is a public defender organization that represents over 45,000 low-income people each year who are accused of crimes and cannot afford an attorney. BDS attorneys have represented clients in many cases where their defense was compromised as a result of the prosecution gaining advance knowledge of the defense's legal strategies through monitoring of the defendants' telephone calls from prison; a practice that BDS believes violates the defendants' Sixth Amendment rights. BDS, therefore, has a strong interest in ensuring that its clients have the absolute protections of the United States Constitution, including opposing any prosecutorial practice that infringes on defendants' constitutional rights to a fair trial. PRELIMINARY STATEMENT Before this Court is an opportunity to rein in a recent prosecutorial practice that has undermined the ability of counsel representing indigent defendants to provide effective assistance. This insidious practice is the mining of pre-trial detainees' telephone calls for information that the prosecution can utilize to develop stronger cases against criminal defendants. To perform this systemic review, the prosecution obtains tapes of telephone calls that the Department of Corrections ("DOC") has recorded for the purpose of ensuring institutional safety. The prosecution then utilizes these tapes for a purpose for which they were never intended - to gather substantive information that it can use in preparing its strategy when prosecuting the defendant. The prosecution utilizes the calls both as evidence and to inform themselves on potential character witnesses and avenues of attack on the defendant. The use of this information allows the prosecution to leverage the state's significant resources in order to prevent defense attorneys from effectively representing their clients. While the recording of these calls by DOC is ostensibly legal for the correctional purpose for which they were authorized, it is patently illegal for the prosecution to repurpose telephone monitoring to circumvent defendants' Sixth Amendment protections. This Court should curtail the prosecution's abuse of its relationship with DOC and restrict prosecutors from gaining access to calls containing information pertaining to the mounting and 2 logistics of defendants' defense, even when such calls occur between the defendants and third parties. The Rules of the City of New York authorize the recording and monitoring of telephone calls for the purpose of maintaining institutional safety when legally sufficient notice has been given to the prisoners, with the exception of calls to attorneys, physicians, clergy, and certain other state monitoring bodies. See 40 RCNY § 1-1 O(h). To ensure that legally sufficient notice is provided, inmates are alerted that calls may be monitored with signs indicating that "Inmate telephone conversations are subject to electronic recording and/or monitoring in accordance with Departmental policy. An inmate's use of institutional telephones constitutes consent to this recording and/or monitoring." DOC Operations Order No. 01109, Section III(E)(l)(a) (available in Supplemental Appendix for Respondent (hereinafter "A"), at 391 ). A notice that telephone calls are monitored is also usually provided in the Inmate Rule Book, and in a prerecorded message when an inmate makes a telephone call. Inmates are never provided notice that recordings of telephone conversations may be shared with the prosecutor or the police. While all non-attorney calls are recorded, DOC does not monitor all of the inmates' calls. DOC's operational procedures provide that the Department may review inmates' recorded telephone conversations under limited circumstances, for example, where the Department learns about a possible introduction of contraband 3 or plans to escape, obtains information about a possible disturbance, or has information which indicates that the inmate may compromise the safety and security of the department or the public. DOC Operations Order, Section III(B)(l) (A.3 86). In addition, DOC rules provide for meticulous procedures to obtain authorization to monitor inmates' telephone calls at the prison facility level. The request to monitor must contain a description of the information that led to suspicion of potential criminal activity, and must receive authorizations from four distinct DOC officers (Tour Commander, Deputy Warden for Security, Commanding Officer, Chief of Facility Operations). DOC Operations Order, Section III(B)(2) (A.387). Furthermore, only individuals trained to monitor recorded calls are authorized to listen. DOC Operations Order, Section III.D (A. 390). While DOC requires a strict authorization process before DOC personnel may listen wholesale to an inmate's phone calls, the process for outside agencies, including the District Attorney's Office, to obtain inmates' conversations is not nearly as exacting. To obtain an inmate's recorded conversation, the prosecutor is only required to make a request, which is "immediately forwarded" to the Deputy Commissioner for Legal Matters. The Deputy Commissioner renders a decision within three business days, and if the request is approved, a copy of the telephone recording is forwarded to the prosecutor "as soon as possible." DOC Operations 4 Order, Section III(C)(l) (A.390). The prosecutor is not required to serve a subpoena or to articulate any probable cause to support the request. Nor is there a criteria that DOC is required to reference for evaluating prosecutors' requests; this lack of guidance means that DOC essentially "rubber stamps" each request, giving the prosecution unfettered access to every call by every defendant. Moreover, DOC has an incentive to give the prosecution unlimited access to the recorded calls. In return for providing access, DOC requests that the prosecutor notify it if the prosecutor's review of the recording reveals any information that would be of interest to the Department. DOC Operations Order, Section III(C)(2)(b) (A.390). Thus, there is an explicit agreement between DOC and the prosecutor's office pursuant to which prosecutors get unrestricted access to inmates' telephone conversations to mine for valuable information in furtherance of their cases and, in exchange for this access, prosecutors provide information that could be of interest to DOC. This arrangement is entirely at the expense of criminal defendants, who have a reasonable expectation that their calls, while monitored for security by the DOC, will not be automatically passed on to the prosecutor. Of course, this mutually beneficial relationship greatly benefits the prosecutors as it provides them with information to use in the preparation of their cases. Prosecutors often rely on pre-trial detainees' recorded telephone 5 conversations to develop pre-trial and trial strategies. The information obtained by prosecutors from inmates' non-attorney calls (for the purposes of this brief "Ancillary Calls") is not limited to hard evidence that is introduced at trial, but also includes information that implicates legal defense strategies. The impact of the systemic review of conversations is significant because it allows prosecution to access calls that go to the defendants' preparation of their defense, but that are not necessarily between the defendant and his attorney. Ancillary Calls to prepare various aspects of a defense are necessary due to the realities of pre-trial detention. Pre-trial detainees lack the mobility and freedom necessary to properly make arrangements for the mounting of their cases and, as a result, need to rely heavily on third parties such as family members, who they can contact only through Ancillary Calls. Some of the more common Ancillary Calls include asking a family member to pick up medical records that are intended to be used to mount a defense; discussing finances with family members relating to the payment for attorneys; discussing upcoming important family events (which enables the prosecutor to consider how such events might affect an inmate's willingness to negotiate a plea deal); and soliciting relatives or friends to be character witnesses. These Ancillary Calls can provide the prosecution with a wealth of information that allows them to head off and undermine a proper defense. For example, a prosecutor who is aware that medical records are being 6 obtained could begin to prepare experts to undermine that defense well in advance of any required notice. The prosecutor may then focus her attention on this avenue of attack and away from other strategies. A prosecutor who is aware that a particular person is being asked to be a character witness has additional time to invest resources in obtaining discrediting information. A prosecutor can leverage a defendant's financial limitations or family obligations to target plea negotiations to force a defendant to plead out for a less preferential sentence, knowing that the defendant effectively has no alternative. The information that the prosecutors gain through this underhanded practice erodes the effectiveness of defense counsel and skews the case in a way that makes it difficult for a defendant to get a fair trial. The instant case is only the latest example of the consequences of this practice. Here, the First Department considered whether the defendant's Sixth Amendment right to counsel was being undermined by the prosecutor's access to his telephone conversations. People v. Johnson, 120 A.D.3d 1154 (1st Dept. 2014 ). The court held that such conversations "are clearly admissible, notwithstanding that defendant's right to counsel had attached." Id. at 1154. In addition, the court held that DOC is not required to provide notice to the defendant that recorded calls may be turned over to the prosecutors. The defendant in Johnson appealed the First Department's decision to this Court, and for all of the reasons set forth below, this Court should reverse. 7 ARGUMENT I. The prosecution violates defendants' Sixth Amendment rights when it monitors pre-trial detainees' telephone calls because the monitoring enables the prosecution to obtain advance knowledge of the defendants' legal strategies and deprives them of a fair trial. The prosecution's unrestricted access to pre-trial detainees' telephone calls, including Ancillary Calls, undermines defendants' Sixth Amendment right to counsel because the monitoring enables the prosecution to obtain advance know ledge of the defendants' legal strategies and the logistical limitations of their cases. This renders the legal proceedings inherently unfair. The right to a "fair trial" is ingrained in the basic construct of the U.S. legal system. The Supreme Court trumpeted the Sixth Amendment's right to counsel as an essential component of ensuring a fair criminal trial. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963). Today, a "fair trial" implicates much more than just the trial itself, particularly because the majority of criminal cases are resolved through plea deals rather than adjudicated. Most defendants' fate is determined through defense counsel's pre-trial negotiations with the prosecution, after counsel and the defendant have together developed the optimal legal strategy to limit the scope and strength of the prosecution. As a result, critical legal advice is imparted to defendants during pre-trial attorney interactions and is often shared by the defendant with his family members by telephone; a necessary evil of widespread pre-trial incarceration. 8 The Sixth Amendment, once attached, guarantees the defendant the right to rely on counsel as a "medium" between him and the prosecution. See Maine v. Moulton, 474 U.S. 159, 176 (1985). The Supreme Court has provided that the prosecution has an affirmative obligation to respect a defendant's Sixth Amendment rights and to not to act in a manner that circumvents the protections accorded the defendant who had invoking the right to counsel. Id. at 1 71. The determination of whether a particular action by the prosecution violates a defendant's right to counsel must be made in light of this obligation. Id. at 176. Monitoring a defendant's telephone conversations violates the prosecution's obligation not to circumvent the defendant's constitutional right to counsel and to a fair trial, because advance knowledge of the defendant's legal strategy gives the prosecution a disproportionate advantage over the defense. By sifting through all of the defendant's calls with friends, family, potential witnesses, and other third parties, the prosecution becomes privy to conversations involving information subject to attorney work product privilege (disclosure of which to third parties does not automatically waive the privilege), or communications that implicate information that is crucial to the defendant's legal strategy. See Skynet Electronic Co. v. Flextronics International Ltd., 2013 U.S. Dist. Lexis 176372 (N.D. Cal. 2013) (holding that disclosure of work product to a third party did not waive otherwise applicable work product protections). This information could be 9 exploited by the prosecution to undermine the defense counsel's ability to adequately represent the defendant. The issue, furthermore, is broader than just admissibility at trial of the information obtained through monitoring of calls. A sharp prosecutor could exploit seemingly innocuous facts gathered from defendant's calls to harm the defense's legal strategy even without the defendant's or his counsel's knowledge. For example, a prosecutor could learn from a monitored call that a defendant would accept a guilty plea that would release the defendant from confinement before his daughter's high school graduation. Clearly, knowledge of this information will provide the prosecutor with a strong incentive to offer a plea of no less than that specified duration, even if the prosecutor's initial position was to offer a lesser sentence. Indeed, in United States v. Mitan, the court recognized this issue and heavily criticized the process through which the government gains access to defense's legal strategy though the monitoring of Ancillary Calls. 2009 U.S. Dist. LEXIS 88886 (E.D. Pa. 2009). Mitan involved calls made on a non-privileged telephone between a defendant who represented himself pro se and his mother and brother. The defendant in Mitan was a pre-trial detainee and was on notice that his Ancillary Calls were subject to monitoring and recording by the Bureau of Prisons, and that he was required to specifically request unmonitored attorney calls. Id. at JO *5-6. Throughout his detention, the defendant used a monitored, non-privileged phone to contact his mother and brother. When the defendant learned that the prosecution was monitoring his calls, he moved to dismiss the indictment on the grounds that the government violated his Sixth Amendment rights because the monitored calls included discussions oflegal strategy, including legal authority, arguments for pleadings, and discussions with potential witnesses. Id. at * 1. The District Court found that the prosecution could have violated the defendant's right to "prepare his defense with communications with witnesses, investigators, and experts without knowledge of the prosecutors in [the] case" when it monitored the defendant's calls. Id. at *8. The court expressed concerns relating to the prosecution's unfettered monitoring of prisoners' telephone calls, and stated that although the defendant was notified that the calls were monitored, that "does not equate to any consent that the agents and prosecutors working this case would gain access." Id. at * 11. The court acknowledged that there is "a major distinction between prison authorities having access to prisoners' phone calls for purposes of prison security and discipline, and the prosecutors of that pretrial prisoner having the same access for purposes of gaining advance knowledge of the pretrial prisoner's trial strategy and potential witnesses .... " Id. The court stressed that the issue was not the propriety of the prison's monitoring of the defendant's calls, but is rather "the [prosecution] accessing those calls in a 11 pretrial context" where "in doing so, the [prosecution] may have, whether purposely or inadvertently, secured information relating to the [defendant's] defense strategy, discussions with potential witnesses, etc." Id. at * 13. To determine whether the monitoring violated the defendant's Sixth Amendment rights, the court in Mitan reviewed recordings of five monitored calls that the defendant argued were illustrative of the prejudice to his defense. See United States v. Mitan, 212 U.S. App. LEXIS 19877, at *9 (3d Cir. 2012). The court, however, found that the selected calls revealed no specific defense strategy, planning, or other confidential matters pertaining to trial and thus concluded that the defendant was not prejudiced by the prosecutor's conduct. Id. Still, the court remarked that if the defendant calls his mother and brother as witnesses, the court may have a voir dire to determine whether the defense has been compromised in a manner not yet ascertainable. Mitan, 2009 U.S. Dist. LEXIS 88886, at *13. The Mitan decision illustrates the constitutional rights at risk when the substance of inmates' telephone calls is turned over, wholesale, to prosecutors and case agents. The fact that the defendant in Mitan represented himself pro se does not make the court's analysis inapplicable here, because any inmate with an interest in his defense (which is every inmate) is likely to use a prison telephone to discuss legal strategies with family members and other non-lawyers he relies on for advice and guidance. A defendant who is represented by counsel has just as much 12 incentive to discuss his legal strategy with third parties as a defendant representing himself prose. In fact, the court in Mitan criticized the prosecutor's monitoring practices despite the fact that Mitan was provided with access to a phone to use for privileged communications. The Mitan court clearly understood that prosecution's direct access to pre- trial detainees' telephone conversations is intrinsically unfair and inherently undermines defendants' constitutional right to "prepare [a] defense ... without knowledge of the prosecutors." Id. at 8. Likewise, this Court should reverse the Appellate Division in this case because granting prosecutors access to pre-trial detainees' telephone calls undermines their ability to mount an effective defense. In addition to violating a defendant's right to a fair trial, this practice also violates the Sixth Amendment by allowing the prosecution to effectively interrogate the defendant outside of the presence of counsel. II. Prosecutors' monitoring of inmates' telephone calls is unconstitutional under the Supreme Court's framework for analysis of Sixth Amendment violations. In deciding the present case, this Court should apply the same analytical framework that the Supreme Court has developed for cases where the prosecution uses a jailhouse informant to gather information and in doing so implicates the pre- trial detainee's Sixth Amendment rights. This framework is appropriate because, similar to the government's use of jailhouse informants, monitoring telephone calls 13 also involves the government using third parties to gather information from defendants in secret, after their Sixth Amendment rights have already attached. The Supreme Court has unequivocally concluded that the Sixth Amendment applies to the government gathering information in any manner from pre-trial detainees because "any secret interrogation of the defendant ... without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime." Massiah v. United States, 377 U.S. 201, 205 (1964). In fact, a defendant is even "more seriously imposed upon" where, as in the present case, the defendant "[does] not even know that he was under interrogation by a government agent." Id. at 206 (internal quotation omitted). A series of Supreme Court cases provide the boundaries as to what constitutes a Sixth Amendment violation in the jailhouse informant context. In Massiah, the Court held that the govermnent violates a defendant's Sixth Amendment rights when an agent for the government elicits a statement from the accused. Id. at 204. In United States v. Henry, the Court held that a defendant's Sixth Amendment right to counsel is violated where the government "intentionally create[ d] a situation likely to induce a [defendant] to make incriminating statements without the assistance of counsel." 44 7 U.S. 264, 274 (1980). Finally, in Kuhlman v. Wilson, the Court held that in determining how much activity on the 14 part of an informant is necessary to make out a Sixth Amendment violation, a defendant needs to "demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks." 477 U.S. 436, 459 (1986). Accordingly, a violation of the Sixth Amendment occurs when a "government agent" "deliberately elicits" a statement from an inmate to whom the Sixth Amendment right to counsel had already attached. DOC's relationship with the prosecutor's office amounts to an agency relationship and the information that the prosecution obtains through monitoring inmates' telephone calls is being deliberately elicited by the government in violation of inmates' Sixth Amendment rights. The quid-pro-quo arrangement between DOC and the prosecution amounts to an "agency" relationship. In People v. Cardona, this Court provided guidance on how to determine whether a prosecutor-agent relationship exists. 41 N.Y.2d 333 (1977). In Cardona, this Court held that "where an informer works independently of the prosecution, provides information on his own initiative, and the government's role is limited to the passive receipt of such information, the informer is not, as a matter of law, an agent of the government." Id. at 336. However, an agency relationship is created if the government is more than a passive auditor, such as where "it actively inveigles" the informer to inform the statements made by the defendant. Id. 15 The Cardona court recognized that an important factor to consider in determining whether an agency relationship exists between a prosecutor and an informer is whether the informant is motivated by the prosecution to provide information. Thus, this Court held that while the government cannot be held responsible "where the motivation to inform comes from the informer and not from the government," if the government "affirmatively plays on [the] motivation to [inform], or harkens the informer to his self-interest, it thereby runs the risk of being responsible and accountable for the informer's action." Id. It is plain that under Cardona, DOC and the prosecutor's office are in an agency relationship, with DOC motivated by the prosecution's promise to give it information that the prosecutor finds. DOC has established a highly complex authorization process which restricts its internal personnel from wholesale, unreasonable monitoring of recorded calls. This process ensures that such monitoring only occurs where prison security is implicated. As a result DOC is motivated to give the prosecution unfettered access in order to obtain information for its own use. DOC, therefore, complies with all prosecution's requests, knowing that it could potentially benefit from the prosecution's investigation of the calls. Unlike in Cardona, where this Court's rejection of an agency relationship relied on the finding that the prosecution did not promise the informer any benefit in return for information, here the benefit that DOC receives from the prosecution 16 ("infonnation ... of interest to this Department") is explicitly provided by DOC' s Operations Order. See DOC Operations Order, Section III(C)(2)(b) (A.390). Furthermore, it is the prosecutor who makes the requests for telephone recordings of specific inmates, rather than DOC offering the recordings to the prosecution without being prompted. See United States v. Brink, 39 F.3d 419, 423-24 (3d Cir. 1994) (government targeting an individual defendant is one factor in making a determination whether Massiah is triggered). It is, therefore, clearly not the case that DOC is acting "independently on its own initiative," or that the prosecutor is merely a "passive recipient of information." See People v. Corse, 73 A.D.3d 1208 (2d Dept. 2010). This relationship is so intrinsic to the operations of the prosecutor's office and DOC that the policy simply to provide telephone recordings to the prosecution upon request is memorialized in writing. DOC Operations Order, Section III(C)(l) (A.390). Therefore, when responding to the request from the prosecutor, DOC is acting within the scope of the parties' cooperation agreement. See Dupree v. Thomas, 946 F.2d 748, 794 (11th Cir. 1991) (holding that to determine whether an individual is a government agent for purposes of the Sixth Amendment, "there must be some evidence that an agreement, express or implied, between the individual and government official existed at the time the elicitation takes place."). The underlying conditions of the DOC-prosecutor relationship compel this Court to find that an agency relationship 17 between DOC and the prosecution exists in this case. In analyzing whether the government "deliberately elicited" information from an inmate, the Supreme Court in Moulton requires examination of the totality of the circumstances surrounding the elicitation. Moulton, 474 U.S. at 176-77. The court must look at whether the government "intentionally created a situation likely to induce [a defendant] to make incriminating statements without the assistance of counsel." Henry, 447 U.S. at 274. In fact, "knowing exploitation by the [government] of an opportunity to confront the accused without counsel being present is as much a breach of the [governments'] obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity." Moulton, 474 U.S. at 176. Accordingly, "the Sixth Amendment is violated when the [government] obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a [government] agent." Id. The prison telephone system instituted by the government "intentionally create[ s] a situation likely to induce [a defendant] to make incriminating statements." See Henry, 447 U.S. at 274. Pre-trial detainees are isolated from their families and confidants, and, facing unresolved criminal charges, have an obvious desire to discuss their cases with the people who are close to them (but who cannot necessarily see them in person while in detention). Indeed, the 18 Supreme Court in Henry recognized the "powerful psychological inducement to reach out for aid when a person is in confinement." 447 U.S. 264, 274 (1980). The unique pressure of incarceration makes it very likely that a defendant will reveal information by phone than in other settings. Thus, it is not dispositive that the government does not explicitly prompt an inmate to discuss certain aspects of his case during a telephone call. Rather, the "deliberate elicitation" occurs because the government has established an environment in which it is able to exploit human nature to functionally elicit information from individuals who are in a highly fragile state of mind. See Moulton, 474 U.S. at 176. The fact that DOC gives inmates notice that calls may be recorded, but fails to mention that the prosecution working against the inmate will have access to the recordings, further demonstrates that the government has created an environment to deliberately and improperly elicit information from inmates. Under Moulton, the analysis of whether information was deliberately elicited requires examination of the totality of the circumstances. 474 U.S. at 176-77. Here, the circumstances are: (i) there is a written policy that incentivizes DOC to share telephone recordings with the prosecution; (ii) DOC uses no standards to evaluate prosecutors' requests and instead simply grants those requests; (iii) DOC selectively notifies inmates that it has access to their telephone conversations, but does not notify them 19 that recordings may be shared with the prosecution; and (iv) it is not burdensome to disclose in the handful of notices at each DOC facility that recordings of telephone conversations may be provided to the prosecution. Logically, there is only one explanation for why the government does not provide this disclosure - to allow prosecutors to exploit the psychological burden of incarceration and to take advantage of irrational and spontaneous statements that inmates are susceptible to making while in confinement. Of course, a warning that telephone conversations are monitored by the prosecutor would put inmates on notice, and possibly make inmates more cautious. The absence of the notice is, therefore, a deliberate ploy by the government to elicit information from unsuspecting defendants. The prosecution clearly understands that it is highly likely that a prison telephone conversation would contain information with legal strategy implications, as demonstrated by frequency with which prosecutors request recordings of Ancillary Calls from DOC. In fact, the Supreme Court has recognized that criminal defendants have a strong interest in participating in their defense. See Faretta v. California, 422 U.S. 806, 834 (1975) ("The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage ... [and] his choice must be honored out 20 of 'that respect for the individual which is the lifeblood of the law.'"). For this reason, it is natural for a defendant to discuss topics that may have legal strategy implications with family and friends, individuals with whom the defendant may be more comfortable than a recently appointed attorney. The likelihood that an inmate will disclose information with legal implications during an Ancillary Call is further magnified by the fact that the prison telephone is the only means for inmates to obtain an immediate consultation with their loved ones. In addition, because unmonitored attorney calls are only permitted in limited circumstances, a pre-trial detainee is highly likely to make arrangements necessary for the mounting of his case (and often at the instruction of his attorney) through Ancillary Calls. As a result, the environment established by the government is deliberately intended to de facto elicit information from inmates. This, in addition to DOC being an agent of the prosecution, compels reversal here. 21 CONCLUSION This Court should find that permitting the prosecution unfettered access to DOC's monitoring of pre-trial detainees' telephone calls is a violation of the Sixth Amendment right to counsel because it renders the legal proceedings unfair and allows the government to obtain incriminating information by knowingly circumventing the presence of counsel. Dated: New York, New York December 30, 2015 Respectfully submitted, LISA SCHREIBERSDORF Brooklyn Defender Services 177 Livingston Street, th Floor Brooklyn, NY 11201 Tel: (718) 254-0700 Fax: (718) 254-0897 By~· =!,,~~~~~=====~~~~- ALEKSANDR B. LIVSHITS ADAM ROSE Of Counsel Fried, Frank, Harris, Shriver & Jacobson LLP 1 New York Plaza New York, NY 10004 Tel: (212) 859-8524 Fax: (212) 859-4000 22