Las Vegas Sun

August 22, 2017

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Court recordings come under fire

Most prosecutors would drool over the chance to have recordings of what defendants and their attorneys talk about.

A local defense attorney alleges that Las Vegas city attorneys had just that ability for almost three months - with the help of the courts.

The video recording system used in Las Vegas Municipal Court was installed on city attorney's office computers in late January, which enabled them to watch all that transpired in court. The practice was stopped April 20, when some judges voiced their concern.

The video feed contained not just what occurred while court was in session, but also in some cases what happened when a judge was off the bench. This included conversations attorneys had with their clients.

Under Nevada Supreme Court Rule 156, those conversations are supposed to be confidential.

The device used to record the Municipal Court activities is voice-activated, meaning the court's video cameras move to and zoom in on those having conversations. The technology provides such sensitivity that if an attorney was having a conversation with a client in the fourth row, that conversation might be recorded as well.

Defense attorney Robert Langford is outraged, and contends the tapes may have led to major violations of attorney-client privilege.

"My first reaction is that to have allowed the city attorney to do it in the first place is outrageous," said Langford, who oversees the criminal defense before Las Vegas Municipal Judge Abbi Silver four days a week. "And for the city attorney to have done it and listened in on conversations of opposing counsel and his or her client absolutely reeks.

"Aside from lacking ethics it even lacks good sportsmanship."

Chief Judge Toy Gregory gave the city attorney's office permission to have the Municipal Court's video system installed on its computers on Jan. 26 without consulting with or informing fellow judges.

He said there "is absolutely no evidence to suggest the city attorney's office used the video unethically or illegally."

Access to the video was blocked about three weeks ago, when other judges expressed reservations to Gregory.

Gregory said he stands by his decision, but at a judges meeting last week announced he would name a committee to examine the issue and to alleviate any concerns. Until the committee concludes its work, only judges and court administrators have access to the recordings.

He said that after reviewing several recordings of conversations between attorneys and their clients occurring in rows throughout the courtroom, it was virtually impossible to decipher what was being discussed.

Each judge has the responsibility of turning the recording system on when court is in session and off when the judge leaves the bench, Gregory said, and that incidents of a judge forgetting to turn the system off "are rare."

Signs are posted outside each courtroom to notify those entering that court proceedings are being videotaped.

Gregory said he hoped the committee's findings would result in the "city attorney's office, private attorneys, defense bar, the media and everyone to have access to the recordings because it's a matter of public record."

Langford, who attended a judges meeting with roughly 20 other local defense attorneys last week to discuss the issue, challenged Gregory's contention that there was no evidence of misconduct by the city attorney's office.

"The only way to make sure there weren't any ethical violations is for us to sit down and listen to every tape that was recorded in all of the courts between Jan. 26 and April 20," he said.

Las Vegas Municipal Court Judge Betsy Kolkoski said she, Judge George Assad and Judge Silver weren't aware until April 20 that city attorneys could watch the court recordings.

She said the city attorney's office, defense attorneys and the media should all be treated equally and that if a party wants access to recordings of what happens in court, they should file a request with the presiding judge or request a copy from the clerk's office.

Kolkoski wouldn't speculate on whether the city attorney's office used the video access to undermine attorney-client privilege. There is "no way to know the consequences," she said.

The judge said she was also troubled that city attorney Brad Jerbic wants to have court proceedings streamed over the Internet.

Victims of "personal crimes" such as domestic violence would be afraid to testify because their names and addresses would be available "worldwide and you would see the shriveling of justice because of it," she said.

Kolkoski was equally fearful that undercover police officers who testify could have their identities revealed if their testimonies were broadcast online.

Calls made by the Sun to Jerbic seeking comment were not returned Tuesday.

Allen Lichtenstein, attorney for the Nevada branch of the American Civil Liberties Union, said if allegations of abuse by the city attorney's office are proved true, "an investigation must be undertaken to look into what would be very unethical conduct."

"If people are to have confidence in the judicial system, it needs to be scrupulously fair and evenhanded," he said. "These allegations suggest the city attorney's office is taking unfair advantage of information that shouldn't be recorded in the first place."

Equally troubling, he said, was defense attorneys and city attorneys having different access to the recordings.

Defense attorneys are only allowed to request copies of recordings of specific cases they are handling, and those tapes only include what occurs while the judge is on the bench.

Langford said either defense attorneys should have the "exact same access or neither the city attorney's office nor defense attorneys should have any such access.

"If we all can't have the video streamed to our computers, then we should all be forced to go to the clerk's office and put in a request and order copies the old-fashioned way."