|
Broward judge boots murder case prosecutors over taped calls: Recordings of a defendant's phone calls with his lawyer from the Broward County Jail are at the heart of a dispute that has landed two prosecutors in hot water.
Jan 06, 2009 (The Miami Herald - McClatchy-Tribune Information Services via COMTEX) --
A Broward County judge has halted a first-degree murder trial and ruled that two prosecutors engaged in prosecutorial misconduct by listening to taped jailhouse phone conversations between a murder defendant and his attorney -- and then kept their conduct a secret.
Circuit Judge Susan Lebow did not declare a mistrial in the case against Luis O. Martinez, 43, of Lauderhill, who is accused of gunning down a man in Lighthouse Point in 2003.
But the judge said the jury would be in recess for two months while outside prosecutors are brought in.
At issue: Two recorded jailhouse phone calls between Martinez and his attorney, Chris Grillo, that were listened to by prosecutors. Grillo, in a motion to dismiss the murder charge, claimed the conversations contained details about defense strategy.
All phone calls from Broward County Jail inmates are recorded. Typically, however, calls to defense attorneys are exempt because of attorney-client confidentiality. "It's a very serious offense for them to listen in on an attorney-client conversation," Grillo said. "His rights were violated. I suspected it, but even when I found out, I was surprised they did it."
Assistant state attorneys Brad Weissman and Julie Vogel said they reviewed Martinez's taped phone calls to investigate alleged threats he was making against his wife. Also, they contend that Martinez agreed to have the calls recorded, thereby waiving confidentiality.
In a ruling Monday, Lebow booted the Broward state attorney's office off the case -- a rare and serious punishment, according to local legal experts.
The state plans to appeal the decision, spokesman Ron Ishoy said in a written statement. "We're disappointed. We believe that the attorney/client privilege was properly waived," he wrote.
If Lebow's decision holds, Gov. Charlie Crist will be asked to appoint a new prosecutor -- likely from Miami-Dade or Palm Beach counties -- to handle the trial, which started in September.
'A BIG DEAL'
Another hearing is scheduled Tuesday that could shed more light on how Martinez's case will proceed amid the unusual turn of events.
"I can't recall when the last time the entire state attorney's office was removed from a case," Public Defender Howard Finkelstein said. "This type of invasion is a big deal and will have a chilling effect on anyone who wants to talk to their attorney from the jail. The impact will go beyond this case."
Broward Sheriff's Office detectives charged Martinez with the Oct. 29, 2003 slaying of Lighthouse Point businessman Charles Moretto. Investigators said Martinez robbed and fatally shot Moretto inside his home after posing as a wealthy investor looking to buy his residence and luxury Bentley.
'BAD CHOICE'
During the trial, neither prosecutor disclosed having heard the private jailhouse conversations, Grillo said. He discovered the two taped calls after a judge ordered the prosecutors to hand over a CD with all the taped conversations.
"This was a very tough case for them. They were having a lot of problems and I think they were getting frustrated," Grillo said. "These prosecutors just made a bad choice. I hope that it's not a common practice [in the state attorney's office]."
When BSO began recording all outgoing inmate phone calls in 2007, defense attorneys were wary that an incident involving attorney-client privilege could surface, said Brad Cohen, vice president of the Broward Association of Criminal Defense Lawyers.
AUTOMATED SYSTEM
For nonlegal calls, inmates are advised by automated system that their phone call is about to be recorded and the caller is required to say "yes" to grant approval and continue with the call.
But the system has a safeguard for calls to lawyers. About 27,000 attorneys from the Tri-county area are listed on the automated "do not record" list at the Broward jail.
Many attorneys have additional phone lines, however, which end up being recorded, Cohen said. That's what happened when Martinez called Grillo: He dialed a number not on the list, and agreed to have the call recorded.
Any attorney phone number not on the "do not record" list would be subject to recording, warned BSO legal counsel Terrence Lynch in a Dec. 22, 2006 memo.
Miami Herald staff writer Rob Barry contributed to this report.
To see more of The Miami Herald or to subscribe to the newspaper, go to
http://www.herald.com. Copyright (c) 2009, The Miami Herald Distributed by
McClatchy-Tribune Information Services. For reprints, email
tmsreprints@permissionsgroup.com, call 800-374-7985 or 847-635-6550, send a fax
to 847-635-6968, or write to The Permissions Group Inc., 1247 Milwaukee Ave.,
Suite 303, Glenview, IL 60025, USA.
[ Back To TMCnet.com's Homepage ]
|
INDUSTRIES
Activate Email 
Find Solutions for Enterprises, SMBs & Service Providers at the INTERNET TELEPHONY Conference and EXPO East, January 20-22, 2010. Miami, FL.
