Police and prosecutors wiretap Southern California courtroom

SAN DIEGO – Police and prosecutors wiretapped a waiting area of ​​a Southern California courtroom to secretly tape two people charged with murder in a move defense attorneys say they violated their rights.

San Diego County Attorney’s Office Summer Stephan said installing listening devices in Vista’s courtroom in 2019 was legal, but it shouldn’t have happened and the office is working on a policy prohibiting staff from participating in future eavesdropping inside courtrooms, spokesman Steve Walker told the San Diego Union-Tribune.

“This presents a greater risk that privileged lawyer-client communications will be inadvertently intercepted,” he said in an email.

The case concerned Marjorie Gawitt, 63, who was killed in March 2019 in a burglary at her home in Carlsbad. She had been stabbed or slashed 142 times.

A couple living in a nearby homeless settlement, Mallissa James and Ian Bushee have been charged with the murder.

Defense attorneys for James said a prosecutor and Carlsbad police placed four eavesdropping devices in the waiting area of ​​the empty courtroom an hour before the two men appeared for the hearing. first time in court and before speaking to a lawyer, the Union-Tribune said. .

The two were then placed in the area and their conversation recorded as authorities eavesdropped from an adjoining room. Their conversation was taped for around 30 minutes but ended when a Deputy Public Defender for James showed up to speak to him before his arraignment, the newspaper said.

The conversation did not result in incriminating evidence and it appears that the two defendants suspect they were overheard, the newspaper said.

James pleaded guilty on November 19 under a deal that will send him to life in prison without the possibility of parole instead of incurring the death penalty. Bushee is awaiting trial. His lawyers claim that James acted alone.

Lawyers for James have filed misconduct allegations against the district attorney’s office, alleging that the recording violated his constitutional rights and court rules prohibiting recordings inside courtrooms.

Prosecutors “used the courtroom to put their thumbs on the scales of justice,” they said in court documents.

Prosecutors contend the tapes were legal because the detention area was technically considered a “detention center” under the control of the sheriff, although the area is inside a courthouse rather than a jail.

It is legal to secretly register defendants in prisons and tanks in certain judicial areas outside courtrooms, the Union-Tribune said.

It is “extraordinarily unusual” to make secret recordings inside a courtroom even though there is no explicit rule against placing listening devices in the detention area, said Shaun Martin, a professor at the University of San Diego School of Law, told the Union-Tribune in an email.

“It’s rare enough that I’ve never even heard of it,” Martin said.

“Unlike homes, courtrooms are not categorically off limits to warrantless surveillance,” he said. “But they’re pretty damn close.”

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