When Gerard Howard was arrested on suspicion of heroin possession, in 2015, the New Orleans district attorney’s office had a problem. The syringe he was found with came back from the lab with no illegal substances detected.



Prosecutors wanted to convict Howard on paraphernalia charges but there was no proof the needle was intended to be used for anything illicit. So they started listening to phone calls between Howard and his then public defender, Thomas Frampton. They found one throwaway but interesting line.

Frampton asked Howard about his whereabouts in the jail system and Howard replied: “After detox or whatever … they just moved me to a different building.”

With the word “detox” presented as context, and despite Frampton’s pleas to the judge to not admit evidence he thought should have been considered a privileged conversation between client and attorney, the prosecution got a conviction.

“The attorney-client phone call ended up being the centerpiece of their case against my client,” Frampton said. “Without the phone, they had no other evidence to meet their burden of proving that the needle in his pocket qualified as ‘paraphernalia’ under Louisiana law.”

The trial was Frampton’s first as a public defender in Louisiana and the only one he ever lost.

“It was a sobering introduction to the fact that some of the basic ideas we might have about the way the law works, the things you learn in law school or might assume from TV, often aren’t the way things operate in Orleans parish,” said Frampton. He now teaches law at Harvard.

According to advocates from Court Watch Nola (CWN), the city is indeed an outlier when it comes to monitoring inmates’ calls. In a report released on Tuesday, CWN said that out of more than 45 cities it contacted, including New York, St Louis, Boston and Dallas, New Orleans stands alone in not providing for calls from inmates to attorneys’ cellphones to be exempt from monitoring and recording. This is a “profound problem” for attorney-client privilege, the report says.

“No US supreme court case or provision of the US constitution has said that attorney-client privilege can only be obtained via a landline and not a cellphone, and neither is this distinction realistic in the 21st century,” said CWN’s executive director, Simone Levine.

‘A plainly unconstitutional situation’

It is common practice for jails to monitor and record phone conversations. It allows jailers to keep tabs on plots to move contraband or escape. But in New Orleans, prosecutors in the office of DA Leon Cannizzaro, who have no responsibility for how the parish jail operates, appear to have unfettered access to such calls. For years this included all calls in and out, even if between client and attorney.

Pushed by CWN in 2017, Orleans parish relented and agreed to let attorneys register landlines that would not be recorded. But cellphones are expressly not eligible for protection.

“It has been clearly established for decades that jail detainees have the right to confidential telephone calls with their attorney,” said David Fathi, director of the American Civil Liberties Union’s National Prison Project. “To the extent that this is not happening in Orleans parish or anywhere else, that is a plainly unconstitutional situation that needs to be remedied.”



Fathi pointed to decisions including the appeals court case of US v Levy, which held that “free two-way communication between client and attorney is essential if the professional assistance guaranteed by the sixth amendment is to be meaningful”. The sixth amendment provides the right to an attorney.

The majority of inmates have not yet been convicted but cannot afford bail. Studies have shown such defendants are at a disadvantage at trial over those who are out on bail. The ability of prosecutors to listen in on phone calls may be one reason why.

The problem for attorneys and clients is not just that prosecutors may try to admit elements of calls into evidence. It is also all the things prosecutors might learn and use to their benefit.



The Orleans parish jail in New Orleans. Photograph: Jamiles Lartey/The Guardian

Nandi Campbell, a private defense attorney in New Orleans, remembers negotiating a plea for a client only for the prosecutor to explain that he knew how many years the client would be willing to take, because he had listened to his calls.

“That’s when I completely cut off all calls,” Campbell said. “It was just too risky.”

Campbell does not have a landline associated with her practice. “The whole notion of landlines is kind of crazy, especially for attorneys who spend a lot of time in court,” she said. Loth to use a cellphone, she therefore visits all her clients in person, which can take more than two hours since there are only three booths for “non-contact” visits.

Frampton encountered a similar issue as a public defender, where he typically had more than a hundred cases at any time.

“There simply aren’t enough hours in the day for a public defender to visit with each of his or her clients in person,” he said. “There is literally no way to provide meaningful representation for your clients given the case loads public defenders face, especially without private and confidential phone communication.”

Regardless, according to the DA’ s office the availability of booths and unmonitored landlines settles the question. “Because defense attorneys have two other readily available options by which to hold private/privileged conversations, there is no constitutional violation,” said Ken Daley, a spokesman for the Orleans parish DA.

Daley added that it was up to defense attorneys to “take steps to ensure private conversations with a client are not recorded or monitored”.

The report from CWN comes on the heels of others about the DA’s office, which was criticized last year for using “material witness warrants” to arrest and jail crime victims so as to secure their testimony in trial. It is facing a related lawsuit.

Shortly thereafter, the Lens Nola revealed the office was sending false subpoenas to potential witnesses to pressure them into talking, a move observers called “unethical, if not illegal”. The office said it would stop sending such notices.