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Wisconsin Electronic Surveillance Control Law (WESCL), §§ 968.27-.37 – Jailhouse Call Intercept – Possibility of Attorney-Client Conversation Doesn’t Overcome Notice to Inmate of Potential for Intercept

State v. Troy Curtis Christensen, 2005 WI App 203
For Christensen: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Given proper notice that calls are subject to recording or monitoring, WESCL allows intercepts of outgoing jail calls notwithstanding the potential for capturing attorney-client calls. (State v. Deonte D. Riley, 2005 WI App 203, ¶13 n. 5, which left this issue open, thereby extended.)

There was no indication that an attorney-client call had in fact been intercepted, ¶16, only that all calls were intercepted, so that any A-C call would have been caught. Would an A-C communication be admissible under the rules of privilege, given the warning that calls are monitored (therefore, the client has no expectation of confidentiality)? A nice question, perhaps; but: how can you, as a matter of policy, compel someone to relinquish confidentiality? Moreover, § 968.30(10) expressly disallows intercepts of A-C calls, which also supports a policy argument that confidentiality isn’t abandoned. Apart from that, § 968.30(9)(a) provides suppression as a remedy for an unlawful interception, which would include an A-C call by virtue of subs. (10). Nor is that quite all:

¶17 In any event, the WESCL provides remedies for improperly intercepted communication. One remedy is suppression. See Wis. Stat. § 968.30(9)(a). Christensen argues that this remedy is insufficient. It would allow the State to intercept his calls to his attorney, become privy to confidential information such as defense strategies, and then simply not offer the conversations into evidence at trial. We agree that this is a serious concern; however, the legislature has already addressed it. If one were to illegally intercept Christensen’s communication with his attorney, one would be liable under the penalties set forth in Wis. Stat. § 968.31(1). That section provides in part:

[W]hoever commits any of the acts enumerated in this section is guilty of a Class H felony…

One other matter of possible note: Christensen was wily enough to take precautions when he called, “using a coded language that Knaus likened to a type of pig-Latin,” ¶6. It apparently worked, but only to a point. Christensen couldn’t have anticipated that the authorities would be cynical enough to enlist his family members to break the code, or that his family would be desperate or heartless enough to oblige. And so his carefully constructed plan failed. For those of you who don’t know, pig-Latin has a venerable tradition, can be found in Shakespeare, and works something like this, http://www.straightdope.com/mailbag/mpiglatin.html: “In pig Latin, one takes a word, i.e., bibliophage, moves the first letter to the end of the word, and adds an ‘ay’ sound. So, we get ibliophagebay. The most famous examples of this exercise are the words ‘ixnay’ and ‘amscray’ produced from ‘nix’ and ‘scram’ – so famous that today they’re considered slang words in themselves.” As you can see, much effort must’ve gone into formulating and then breaking the Christensen code

This isn’t to suggest, of course, that other grounds for evidentiary exclusion won’t be present. See, e.g., State v. Knight, OR SCt S55423, 12/6/07 (jail recording of inmate’s “persistent references” to his counsel as “this fucking attorney” and “this motherfucker” should have been excluded on 403 grounds of unfair prejudice).

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