WALLA WALLA -- Criminal charges have been dismissed against a local man serving a prison sentence of more than three years for beating up his then-girlfriend and assaulting her sister because inadvertent recordings at the Walla Walla County Jail of telephone conversations between the man and his lawyer violated attorney-client privilege, according to Prosecuting Attorney Jim Nagle.
As a result, Joseph A. Davis was released Tuesday from the Airway Heights Corrections Center where he was serving his prison term.
He was incarcerated about 19 months related to the case. Had it not been dismissed, the earliest he could have been released with credit for good behavior would have been March 25 of next year, according to the Department of Corrections.
Nagle said in an interview this week his office investigated a complaint by Davis this past spring that phone calls he placed to his attorney, William McCool, were recorded in months leading up to Davis' guilty pleas and sentencing in mid-2011. Davis at the time was incarcerated at the County Jail, which is under the jurisdiction of the Sheriff's Office.
Nagle said his staff recently discovered that about 12-15 such calls from Davis to McCool's cellphone had been recorded mistakenly and -- in two instances -- accessed by a Walla Walla police detective. Therefore, Nagle said, he had to drop the charges, allowing for Davis' release.
"We determined if this issue went up to appeal, (all evidence in the case) would be suppressed and we wouldn't have enough to go forward," Nagle said.
He added the detective doesn't even remember listening to the phone calls, no one knew of the violation at the time and authorities didn't receive any inside information as a result. But that doesn't matter because attorney-client conversations are "sacrosanct," Nagle said.
Davis, 22, pleaded guilty in May 2011 to two counts of third-degree assault that occurred during a disturbance the previous November. Officials said Davis repeatedly punched and hit his then-girlfriend Shelly Yeley at a residence on Sumach Street and threatened her and her sister, Yvonne Yeley, with a knife.
He also entered guilty pleas to one count each of tampering with a witness at the scene and intimidating a public servant by threatening an officer who took him to jail.
He didn't admit guilt, but acknowledged the prosecution had evidence to convict him.
Walla Walla County Superior Court Judge John Lohrmann sentenced Davis the next month to three years and four months, with credit for 163 days he'd served at the County Jail related to charges in the case, and placed him on a year of community custody after his release. Davis then was transferred to the state prison system.
Lohrmann signed a formal dismissal order last week, on July 19. The case cannot be refiled.
In the order, Lohrmann allowed Davis to withdraw his guilty plea, which he had been asking to do since late March of this year.
Davis claimed McCool was negligent and his actions violated Davis' constitutional rights to be represented by an effective lawyer.
"My largest complaint against my attorney ... is for seven months from December 2010 to June 2011 (while at the County Jail), (McCool) encouraged me to speak with him on a phone that he knew was being monitored and recorded by the Walla Walla County Sheriff's Department," according to Davis' motion for withdrawal of his guilty plea.
Davis wrote that every time he called McCool's office, a voice from the jail phone system would clearly say the call was being monitored and recorded. It turned out, however, that calls to McCool's cellphone were the ones affected.
Davis wrote that he pleaded guilty in a plea bargain because he was afraid he couldn't get a fair trial based on "lies," but later realized by conducting research in a prison law library that the recording of his attorney-client phone calls violated the U.S. Constitution and state law.
McCool said in an interview this week that as a recipient of the calls, he didn't hear any warnings and didn't believe the conversations were being recorded. Otherwise he would have filed a motion to have Davis' case dismissed, McCool said.
He was pleased to hear Nagle's office investigated and pursued the dismissal because the attorney-client confidentiality had been breached.
Nagle told the Union-Bulletin the jail's digital telephone system routinely and automatically records inmate telephone calls, and most can be accessed by officials for various reasons, including conducting further investigations.
To prevent a phone call from an inmate to an attorney from being recorded, the inmate is supposed to give jail staff the attorney's number so it can be entered into the automated system and blocked from the recording process.
Nagle said his office's recent investigation revealed Davis made more than 500 phone calls during his incarceration at the County Jail. Between 12 and 15 calls placed from Davis to McCool's cellphone were recorded and the computer system reveals a detective -- who was investigating Davis for alleged witness tampering -- listened to two of them in May of last year.
One was a short message Davis left in McCool's voice mail, according to Nagle. The other call lasted about three or four minutes.
"We don't know how much was listened to" because the computer system doesn't provide that information, Nagle said.
However, jail staff told Nagle's office that McCool had made an oral request for his cellphone number to be blocked from recording, presumably before the recordings occurred.
McCool told the Union-Bulletin this week he doesn't remember when he made the request or if he ever did. He didn't believe he had to because "they should have known (to block it) all along," he said.
Nagle said his office is operating on the assumption that not adding McCool's cellphone number to the blocked list was an oversight by a jail officer who perhaps was distracted by other duties after receiving the request.
Although the matter in no way affected the outcome of the case, "Attorney-client conversations are so privileged and the law is so strict on this issue, you end up having to suppress everything," Nagle said.
Therefore, he and his staff decided the chances were "less than slim" Davis' conviction could stick and decided "this has to be vacated."
"Regardless of whether we like it or not it's our duty as prosecutors to make sure this type of thing is being taken care of," Nagle said.
Now, more attention is being paid to the issue, although officials have not been made aware of a similar problem with any other case, according to Nagle.
"We're trying to get everybody to tighten up the system so this type of error doesn't happen in the future," he said.
He added, however, that inmates need to understand if an attorney's phone number isn't communicated to the jail staff or if they call someone who then initiates a third-party conversation with an attorney, those calls will be recorded and it won't be the jail's fault.
"If nobody had asked the jail to block (McCool's) number, it might have presented a different set of facts (in the Davis case)," Nagle said.
John Turner, the county sheriff since January 2011, said this morning the phone numbers of all local attorneys have been entered into the jail's phone system and are blocked. Other numbers are added to the blocked list upon written request.
"We have not been able to confirm Mr. McCool made a verbal request. But our policy is not to accept a verbal request. We require it in writing," Turner said.
"And in this specific case we have no written request that that number be blocked."
He said his office is continuing to look into the matter, adding, however, "Our investigation doesn't show a mistake by the jail."
U-B reporter Andy Porter contributed to this report. Terry McConn can be reached at firstname.lastname@example.org or 526-8319.