Jailhouse calls are not private, SJC rules

Rejecting contentions that the subpoenas violate prisoners’ privacy rights, the Supreme Judicial Court found that both inmates and pretrial detainees have no reasonable expectation of privacy because they are clearly warned that all telephone calls are subject to monitoring and recording.

“Here, where all parties to the recorded telephone calls had notice that their conversations were not private, and where the detainee or inmate had no objectively reasonable expectation of privacy, any privacy interest in those conversations must be given little, if any weight,’’ Justice Roderick L. Ireland wrote in the majority opinion.

The court found that prison officials have a right to record conversations because of security concerns and that prosecutors are entitled to subpoena tapes of those calls while gathering evidence to present to grand juries.

Currently, all prisoner calls are subject to monitoring or recording, except those between prisoners and their lawyers. Under the ruling, prisoners’ conversations with their lawyers would remain protected by the attorney-client privilege and would not be recorded or subject to subpoenas.

In her dissent, Chief Justice Margaret H. Marshall wrote that “the implications of this are profound’’ because prison officials and prosecutors are no longer constrained by privacy rights guaranteed by the Constitution from any use they may make of private phone conversations of all inmates, even those of detainees who have not been convicted.

She raised concerns about whether prosecutors were seeking to subpoena telephone calls between inmates and their pastors, therapists, or spouses, and those between juvenile detainees and their parents.

“Although institutional security concerns may outweigh a detainee’s privacy rights and permit monitoring of a detainee’s telephone calls by the sheriff, it does not follow that a detainee can have no subjective expectation of privacy with regard to other government officials,’’ Marshall wrote.

In the majority opinion, the court upheld a lower court judge who ruled that Suffolk County Sheriff Andrea J. Cabral was required to comply with a grand jury subpoena from Suffolk District Attorney Daniel F. Conley’s office seeking all of the recorded telephone calls of a prisoner.

Citing the secrecy of grand jury proceedings, Conley’s office declined to identify the prisoner.

A spokesman for Cabral said she had asked the high court to rule on the constitutionality of the subpoenas after a judge in an unrelated case found last year that such subpoenas violated privacy rights.

Yesterday, Conley hailed the Supreme Judicial Court decision as a victory for prosecutors, noting that his office used recordings of jailhouse telephone calls to win convictions for murder, witness intimidation, perjury, and other violent crimes.

“Barring the use of jail calls could have resulted not just in acquittals, but in retaliation against witnesses,’’ Conley said. “Defendants make mistakes and that sometimes is what provides the crucial break. That allows you to hold them accountable for their actions.’’

But the decision drew swift condemnation from defense lawyers.

William J. Leahy, chief counsel for the Committee for Public Counsel Services, called the decision “profoundly wrong’’ and said lawyers will explore legislation that would restrict the ability of prosecutors to subpoena jailhouse calls.

“It’s one thing to say that because you are locked up and the institution needs to be secure that the calls need to be recorded; it’s another thing to say that everything in every conversation can be in every prosecutor’s file at the beck and call of the prosecutor,’’ Leahy said. “It’s just so sweeping that it really requires correction by a higher court or by the state Legislature.’’

It is unclear whether the decision means that Middlesex prosecutors will be able to use jailhouse calls between teenage murder suspect John Odgren and his parents at his upcoming trial for the 2007 stabbing death of fellow student James Alenson at Lincoln Sudbury Regional High School.

The Supreme Judicial Court has yet to rule on an appeal from Middlesex prosecutors, who argued that a judge erred when he blocked them from using 30 hours of Odgren’s conversations taped at the Plymouth County jail.

The lower court judge found that the subpoena for Odgren’s conversations was too broad and violated requirements that such requests be linked to a court hearing.

Boston attorney Patricia Garin, who is one of Odgren’s lawyers, called yesterday’s ruling “a terrible decision’’ that will affect incarcerated children, yet fails to address issues that are unique to them. In some facilities, all of their conversations with their parents are recorded and could now be subpoenaed, she said.

“Under today’s decision, prosecutors, for the first time, can listen to every telephone conversation a prisoner has with all family members, doctors, social workers, or priests,’’ Garin said. “This allows prosecutors to get any of those recordings for any reason and no reason.’’

Shelley Murphy can be reached at shmurphy@globe.com.