Rabbi Victor Koltun
GOSHEN — Some members of the defense bar are up in arms
because the Orange County District Attorney's Office has been getting
recordings of certain jail inmates' phone calls.
The prosecutor's office has requested audio copies of calls
for specific inmates — among them Brett Kanoff of Port Jervis, awaiting trial
on murder charges in the death of his infant son; and Rabbi Victor Koltun, the
Brooklyn rabbi charged with first-degree murder and masterminding a
murder-for-hire plot. The jail does not keep or provide copies of calls to
lawyers.
Chester lawyer Benjamin Ostrer, who represents Kanoff, said
the calls can give prosecutors insight into defense trial strategy.
"The Orange County district attorney has conceded that
it has a practice of listening to inmate phone calls without judicial oversight
and without subpoena required by federal and state law," Ostrer wrote in
legal papers asking a judge for a hearing on possible violations of
attorney-client privilege and work product.
"It's a disgrace," Ostrer said. "I guess the
definition of a fair trial is different in Orange County than it is in the rest
of the United States."
John Geidel, chief trial assistant district attorney with
the Orange County District Attorney's Office, said listening to inmate calls is
common practice for law enforcement across the country.
Once they're in the jail, Geidel said, inmates had no
expectation of privacy on phone calls.
If an inmate chooses to discuss his lawyer's advice or plans
during a phone call with a friend or relative, Geidel said, it's no different
than if a defendant had that discussion in a courthouse hallway or in front of
a police officer — essentially, in public. There's no privilege there.
Orange County prosecutors don't request recordings often,
Geidel said.
Undersheriff Ken Jones said all inmates get a rules booklet
when they enter Orange County Jail, which tells them that inmate phone calls,
except those made to lawyers, are recorded for security purposes. The phones
are labeled to that effect, and reminder plays at the beginning of each inmate
call.
Jones said he learned about a year ago that prosecutors were
getting call recordings without subpoena.
The County Attorney's Office advised him it was fine, Jones
said, but the jail now requires prosecutors to get a subpoena.
Rabbi Victor Koltun's lawyer, Glen Plotsky, is reviewing 424 calls
— more than 57 hours' worth, many in Yiddish or Russian, recorded from October
2011 through Oct. 9, 2013 — that prosecutors turned over at his request after
he heard about the issue with the Kanoff case. Plotsky called the practice
"outrageous."
Listening to Koltun's calls is particularly problematic,
Plotsky said, because the rabbi has expressed an interest in representing
himself.
"Every one of these calls is attorney-client
privilege," he added, "and the DA had no business listening."
The prosecutor's office is confident that legal precedent is
with them. "They waive any right to privacy," Geidel said.
By Heather Yakin – Times Herald-Record
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