By Paula Reed Ward
Pittsburgh Post-Gazette
PITTSBURGH — When a visitor and inmate pick up handsets to talk to each other through the glass partition at the Allegheny County Jail, it might seem like a telephone call being made in a place where there would be no expectation of privacy.
But the state Supreme Court has said those devices aren’t telephones, and a local judge has interpreted that to mean that the jail doesn’t have the right to record the conversations.
In the case of James Taric Byrd, 37, prosecutors used just such a recording to charge him with rape and related counts after he described the assault in graphic detail during a visit with the alleged victim.
Following a suppression hearing, Common Pleas Judge Donna Jo McDaniel threw out the recording based on the September state Supreme Court case out of Clinton County. In that case, the appellate court ruled that because the devices used for visitation at the jail are not telephones, they are therefore not subject to the wiretap exception that covers telephone recordings at county correctional facilities.
“Relying on the Fant decision, the jail visitation conversations will be suppressed,” Judge McDaniel said at a hearing in the Byrd case.
She did not offer any other explanation.
Last week, Assistant District Attorney Lawrence Sachs filed a motion for reconsideration. He is not arguing whether the handsets are phones — as was the only issue in the Supreme Court case — but rather that the recording, instead, falls under a separate wire tap exception: mutual consent.
“The parties’ choice to converse, despite knowing that prison authorities would intercept their conversation, demonstrates their consent to the intercept,” he wrote.
Both Byrd and the woman heard a recording that said, “This call may be monitored or recorded” before their conversation.
“The evidence of record in this case demonstrates that defendant and his visitor were both warned that their conversations would be monitored or recorded, and behaved as though they believed that monitoring or recording was taking place,” Mr. Sachs wrote. “That they chose to engage in the conversation anyway demonstrates their consent by conduct to that recording.”
During the initial argument on suppression, Judge McDaniel said she did not feel that Mr. Sachs proved Byrd consented to the recording.
In the Supreme Court case, Rahiem Fant is charged with allegedly stabbing a man in the arm and abdomen. Prosecutors planned to use his visitation recordings against him at trial, but the Common Pleas judge on the case suppressed them, finding that the handsets used to facilitate the visits were not telephones, did not involve the dialing of a telephone number and did not use wires connected to a telephone company. Therefore, the court found, their use does not fall under the wiretap exception for jail phone calls.
“As an initial matter, we note that one would not ordinarily consider face-to-face conversations at a prison between an inmate and his visitor to be ‘telephone calls,’” wrote Justice Christine Donohue. “Although the inmate and his visitor use handsets to communicate through glass, this is an in-person visit bearing few characteristics of what is commonly considered to be a telephone call. And there is no indication that the Wiretap Act carries a buried implication that the term ‘telephone call’ should be given a broader definition than the one that is commonly understood.”
Based on the Fant decision, defense attorney Brandon Herring filed a motion to suppress Byrd’s statements at the jail.
“The defendant would submit that this investigation was entirely premised upon review of evidence, namely the defendant’s jail visit records, that are inadmissible at trial,” he wrote. “Accordingly, the defendant submits that the evidence in this matter was obtained as fruit of the poisonous tree of the commonwealth’s illegal wiretap of the defendant’s jail communications and must be suppressed.”
According to the criminal complaint in the rape case, the woman Byrd is accused of assaulting visited him in the jail Feb. 17. During the recorded conversation, Byrd referenced medication the woman was taking that made her sleep very soundly.
“I was trying to show you that you’re so incoherent, and sedated, and out of it on this [medicine] that anybody can do anything to you, and you’ll never even know it,” he said.
Then he described the alleged assault, saying, “And you was asleep and didn’t even feel it.”
After police obtained the recordings, they interviewed the alleged victim. She told them she was 34 years old and had dated Byrd off and on since she was 16. She “recounted a long history of physical abuse and psychological intimidation by Byrd,” police wrote. She also said he threatened to kill her several times and pointed a gun at her.
The woman then told police that in May 2015, when Byrd was out on bond in a gun case, Byrd showed her a video he had recorded on his phone. In it, she said she was unconscious on her living room couch, and he was sexually assaulting her.
“[The alleged victim] said Byrd was laughing and smiling as he replayed the video and stated, ‘this is what I did last night,’ ” the complaint said.
Byrd served 12 years in prison after he was convicted in Elyria, Ohio, in 2003 for aggravated robbery, kidnapping and aggravated burglary. He was released on supervision in October 2014 and arrested in a gun case in McKeesport in February 2015. His trial on those charges is scheduled to start before Judge McDaniel on Nov. 28. Last week, he told the court he wanted to represent himself at trial.
He previously was charged with criminal homicide in 2000 in Allegheny County, but the count was withdrawn a year later. He also has convictions for aggravated assault and reckless endangerment in Pennsylvania.
Following the Fant decision, on Oct. 4, the county jail stopped recording inmate visitations.
But Mr. Sachs argues that the Fant case is distinct from Byrd’s. In Fant, there was no testimony that the inmate was ever given any warning that the visitation was being recorded.
In Byrd’s, the recorded warning was played at the start of every visitation. In addition, Mr. Sachs argued, Byrd acknowledged he was being recorded during at least one conversation when he said, “I swear to God, and — and — I’m gonna say it on the phone, I don’t give a [expletive].’
“So he knew he was being recorded. He mentions the fact that he’ll say it on the phone and he didn’t care that he was being recorded,” Mr. Sachs argued.
Therefore, the recording should be admissible under the mutual consent exception to the wiretap law.
In addition to falling under the mutual consent exception, David A. Harris, a University of Pittsburgh law professor, said there is little expectation of privacy in the county jail.
Inmates are warned they’re being recorded, and other inmates can be nearby listening.
“I don’t understand how those are private conversations,” he said.
The Fant case covered nothing other than the issue of when a phone is a phone, Mr. Harris said.
“It didn’t go beyond that,” he continued. “Sometimes the court decides a very narrow issue and doesn’t feel the need to go beyond that.
“That’s the way the law is supposed to be.”
But, he continued, that can also lead to confusion.
“It does muddy the waters because the next step seems very logical. A jail conversation is not, generally, going to be protected.”