A Yakima County Superior Court judge has ruled that a jail inmate’s constitutional rights were violated because recorded phone calls to his attorney were listened to by the county prosecutor’s office and a sheriff’s detective.
In his ruling Wednesday, Judge Douglas Federspiel granted Daniel Woolem’s motion to dismiss several felony drug and stolen property charges because his attorney-client privilege was violated.
Prosecuting Attorney Jim Hagarty didn’t return phone calls Wednesday afternoon seeking comment.
Woolem’s attorney, Ricardo Hernandez, said the ruling was unprecedented locally.
“This is huge,” he said.
Federspiel made his ruling after a special investigator — former Yakima County prosecuting attorney and retired U.S. Attorney Jeff Sullivan — was brought in to determine the facts of the case. The judge reached his conclusions based on Sullivan’s report and testimony given at a two-day hearing this week.
“Under the limited, unique and specific facts of this case based upon this record, it is the court’s opinion that of the available remedies, the only meaningful and appropriate remedy that addresses the violation of the defendant’s right to counsel is the dismissal of the pending charges against Mr. Woolem,” Federspiel wrote in his order dismissing the charges.
Officials disclosed last summer that there was eavesdropping on calls in May 2011 between Woolem and his attorney at the time, Tim Schoenrock. After the disclosure, Federspiel appointed Sullivan to investigate.
It was the second time that an investigation was launched into eavesdropping of calls between an inmate and his attorney. The first case involved Kevin Harper, the prime suspect in the February 2011 Goggin family triple homicide. That investigation was called off after Harper reached a deal with prosecutors to plead guilty to lesser charges and have homicide charges dropped.
The county jail has a phone system that can record all telephone calls involving inmates, and they are warned that their calls are recorded. However, a jail official testified that inmates are also told that calls with their attorneys will not be recorded. Inmates are informed of that exemption verbally and in writing.
The Department of Corrections maintains a list of attorneys and phone numbers that are blocked from recordings. However, evidence in Woolem’s case revealed no effort by the department to inform lawyers of the recording system. Rather, “The evidence on this record established only that the information was unwritten and disseminated by local counsel through word of mouth,” Federspiel wrote.
Those authorized to listen to recordings are issued computer user names and passwords for access, and that information is not to be shared. The Department of Corrections says that “individuals receiving user names and passwords were not to share (them) with any other employee of Yakima County or any other governmental agency,” Federspiel wrote.
If a recorded call between an inmate and attorney is listened to, the department requires that the eavesdropping be stopped as soon as those authorized to listen realize an attorney is on the line.
The phone calls between Woolem and Schoenrock were made at a time that prosecutors were becoming increasingly concerned about the attorney’s failure to show up for court dates and an appearance that he was “under the influence of drugs when he did appear,” the judge wrote.
A recording of the first call in question, from May 3, 2011, was listened to that same day by Detective Robert Tucker. Tucker said he stopped listening as soon as he realized an attorney was involved, and he said he reported the eavesdropping to the prosecutor’s office.
“However, a transcript provided by Special Master Sullivan indicates that the access went well beyond what should have been the first indication that the conversation was an attorney-client communication,” Federspiel wrote.
The other two calls, on May 7 and May 9, 2011, were accessed in September of that year by someone using Hagarty’s user name and password. Hagarty said he did not listen to the recordings, and that he may have authorized someone in his office to use his user name and password. Neither Sullivan nor Hagarty was able to determine who accessed the calls, and no one stepped forward to admit they had done so, Federspiel wrote.
Hernandez, Woolem’s current attorney, said: “Basically, there was a severe breakdown in the security system. There should have been someone to take responsibility for those calls and there wasn’t.”
Federspiel’s ruling noted that the last two calls were accessed on the same day — Sept. 30 — that Schoenrock was arrested for driving with a suspended license and taken into custody. Later, he was charged with possession of stolen property.
Hernandez said he saw a direct correlation between those calls and incidents surrounding Schoenrock’s investigation and arrest.
“All these little investigations of Schoenrock were going around at the time of these calls,” Hernandez said.
Since the Woolem phone calls came to light, the Corrections Department revoked automatic access to recordings by the sheriff’s office and Yakima police, requiring both agencies to have requests for access screened by county prosecutors. Also, Federspiel noted, the prosecutor’s office has changed its internal policies regarding user names and access to the inmate phone system.
The judge wrote that prosecutors asked him to infer that “access was accidental.” However, Federspiel concluded based on evidence and the credibility of witnesses under oath “that the access was an intentional, deliberate and purposeful access to the conversations between Mr. Schoenrock and Mr. Woolem.”