SAN DIEGO (AP) — Police and prosecutors bugged a holding area of a Southern California courtroom to secretly record two people who were accused of murder in a move defense lawyers say violated their rights.
The office of San Diego County District Attorney Summer Stephan said the planting of listening devices in the Vista courtroom in 2019 was legal but it shouldn’t have occurred and the office is working on a policy banning staff from taking part in future eavesdropping inside courtrooms, spokesman Steve Walker told the San Diego Union-Tribune.
“It poses a greater risk that privileged attorney-client communications could be inadvertently intercepted,” he said in an email.
The case involved Marjorie Gawitt, 63, who was killed in March 2019 during a burglary at her Carlsbad home. She had been stabbed or slashed 142 times.
A couple living in a nearby homeless encampment, Mallissa James and Ian Bushee were charged with the killing.
Defense lawyers for James said that a prosecutor and Carlsbad police planted four electronic listening devices in the holding area of the empty courtroom an hour before the pair were to make their first court appearance and before they had spoken to a lawyer, the Union-Tribune said.
The two were then placed in the area and their conversation recorded as authorities listened from a nearby room. Their conversation was recorded for about 30 minutes but ended when a deputy public defender for James showed up to speak with her before her arraignment, the paper said.
The conversation didn’t turn up incriminating evidence and it appeared both defendants suspected they were being heard, the paper said.
James pleaded guilty on Nov. 19 under a deal that will send her to prison for life without chance of parole instead of facing the death penalty. Bushee is awaiting trial. His attorneys contend that James acted alone.
Attorneys for James have filed misconduct allegations against the district attorney’s office, alleging that the recording violated her constitutional rights and court rules that ban recordings inside courtrooms.
Prosecutors “used the courtroom to place their thumb on the scales of justice,” they said in court papers.
Prosecutors argue that the recordings were legal because the holding area was technically considered a “detention facility” under control of the sheriff, despite the area being inside a court rather than in a jail.
It is legal to secretly record defendants in jails and in holding tanks in some court areas outside of the courtrooms, the Union-Tribune said.
It is “extraordinarily unusual” to make secret recordings inside a courtroom even though there isn’t any explicit rule against putting listening devices in the holding area, Shaun Martin, a University of San Diego law school professor, told the Union-Tribune in an email.
“It’s sufficiently rare that I’ve never even heard of it occurring,” Martin said.
“Unlike homes, courtrooms aren’t categorically off limits for warrantless surveillance,” he said. “But they’re pretty darn close.”