Fla. Prosecutor's Office Disqualified for Listening to Lawyer Phone Calls

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A Florida judge has disqualified the entire Broward State Attorney’s Office from trying a murder case after learning that two prosecutors had listened to recordings of the jailed defendant’s phone calls to his attorney.

Defendant Luis Martinez’s right to a fair trial was violated by the eavesdropping, Circuit Judge Susan Lebow held yesterday. Today she sent jurors in the case home for two months while the situation is resolved, after granting a government motion to put the trial on hold, the Miami Herald reports.

The state’s attorney’s office is asking the Florida attorney general for help filing an appeal; it contends that Martinez waived his attorney-client privilege by agreeing to have the calls recorded. The two prosecutors who listened in on the calls did so to investigate alleged threats the defendant was making against his wife.

However, the judge, citing the TV show Law and Order, wrote in an opinion that “anyone who has turned on the television in the last 10 years knows” the privilege applied. She said prosecutors should have used “common sense” once they realized Martinez was talking to his lawyer, the newspaper reports.

Defense attorney Chris Grillo found out that prosecutors had listened to two calls, in which he says trial strategy was discussed, after requesting a CD of all recorded calls involving his client from the government. It included two between him and his client, which led him to inquire further, according to the Herald.

Jailhouse calls made to phone numbers listed as belonging to defense counsel aren’t recorded, the newspaper explains. However, inmates otherwise are required to consent to have the call recorded before it is put through; under an automated system that took effect early in 2007 all outgoing calls are recorded except calls to lawyers whose phone numbers are listed.

Grillo apparently was disappointed that the case wasn’t dismissed:

”They caused this delay with their misconduct and that misconduct continues to keep my client in jail,” he tells the newspaper. “The ruling speaks for itself. The case is 5 years old, and they are still stalling.”

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