Columbia Police commit felony wiretap by recording an attorney-client phone call, in violation of state and federal law. Columbia Police officer(s) recorded a legally privileged phone call between Shayne Healea and his attorney Shane Farrow on October 24, 2014, at the Columbia Police Department. The officer(s) involved have yet to be identified.
Mr. Healea had been arrested on October 24, 2014, and after which he had requested to speak with his attorney in private. At first, the yet unidentified officer refused to permit a private and legally privileged attorney-client phone call. But then the officer apparently relented and placed Mr. Healea in holding cell for privacy to talk with his attorney. A legal duty the officer was required to obey as commanded by both Missouri law and the United States Constitution. Unbeknownst to Mr. Healea this Columbia Police officer was using electronic surveillance equipment placed in the holding cell to enable police commit felony wiretap and record the 15 to 20 minute phone call between Healea and his lawyer.
As an attorney who has had what I believed to be legally privileged attorney-client conversations with my clients within the confines of the Columbia Police Department. I was outraged when news reports from the Columbia Tribune and Columbia Missourian revealed that Columbia police officer(s) had committed a felony wiretap and I was concerned that my client(s) rights might also have been violated by similar criminal actions committed by the police.
Why It Is Important
On January 23, 2017, I filed two seperate criminal and Internal Affairs complaints against Columbia Police Officers:
1. Against Deputy Chief Jill Schlude for obstruction of justice by hiding from a federal subpoena duces tecum in a civil rights lawsuit filed by Matt Akins of Citizens For Justice against the City of Columbia, Police Chief Kenneth Burton, Sgt. Roger Schlude, Rob Sanders and other officers and Boone County Prosecutors. The suit was filed as a result of First Amendment retaliation against Akins for reporting for Citizens For Justice;
2. The above linked IA and criminal complaint for felony violation of wiretap acts related the aforementioned incident in which Columbia Police commit felony wiretap by recording an attorney-client phone call at CPD headquarters.
When the police commit felony wiretap by recording a legally privileged attorney-client communication, it is a direct attack upon the rule of law. In addition, it undermines a citizen’s constitutional right to have an effective attorney. This crime places the government in an unfair position by knowing a citizen’s secrets. When Columbia Police commit felony wiretap to secretly give the government inside information about the citizen’s involvement in the case under investigation and any non-case related concerns of the citizen (ie, family, financial, publicity concerns) it empowers the government to coerce results not supported by the law and facts. It is like playing poker where the opposing player knows your cards, your bank account balance and the pending bills due in your household.
Sir Francis Bacon, a lawyer and scientist and former Lord Chancellor of England stated that “knowledge is power” and that is never more true than when the government is seeking to deny a citizen their liberty. Permitting the government to illegally obtain your secrets removes the protection of law to which ever citizen is entitled in the American system of justice.
The attorney-client privilege may well be the pivotal element of the modern American lawyer’s professional functions. It is considered indispensable to the lawyer’s function as advocate on the theory that the advocate can adequately prepare a case only if the client is free to disclose everything, bad as well as good. The privilege is also considered necessary to the lawyer’s function as confidential counselor in law on the similar theory that the legal counselor can properly advise the client what to do only if the client is free to make full disclosure. There has always been some anxiety about the privilege, as there is about all privileges. As a matter of common sense it is unlikely that a client would wish to withhold from his lawyer information that puts him or his cause in a favorable light. Of course, it is possible that a particular client on a particular occasion may be concerned with the privilege as a matter of principle-wishing to avoid even the most unflattering of appearances.
In Missouri, the attorney/client privilege does not apply to any disclosures of specific intent to commit future acts of violence against another person. The attorney-client privilege, codified in § 491.060(3), RSMo, attaches to:
(1) Information transmitted by [a] voluntary act of disclosure;
(2) between a client and his [or her] lawyer;
(3) in confidence; and
(4) by a means which, so far as the client is aware, discloses the information to no third parties . . .
Special Prosecutor Requested
Upon learning of this criminal behavior by Columbia Police Officer(s) I contacted Boone County Prosecuting Attorney Daniel Knight to request that he appoint a special prosecutor to ensure the integrity of our criminal justice system and hold accountable the illegal act(s) of officer(s). Police commit felony wiretap in a direct challenge to the rule of law. When police commit felony wiretap they violate the law and our public trust:
Missouri’s Wiretap Statute, RSMo 542.400 et seq. and specifically 542.402:
542.402. 1. Except as otherwise specifically provided in sections 542.400 to 542.422, a person is guilty of a class E felony and upon conviction shall be punished as provided by law, if such person:
(1) Knowingly intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire communication;
(2) Knowingly uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when such device transmits communications by radio or interferes with the transmission of such communication; provided, however, that nothing in sections 542.400 to 542.422 shall be construed to prohibit the use by law enforcement officers of body microphones and transmitters in undercover investigations for the acquisition of evidence and the protection of law enforcement officers and others working under their direction in such investigations;
(3) Knowingly discloses, or endeavors to disclose, to any other person the contents of any wire communication, when he knows or has reason to know that the information was obtained through the interception of a wire communication in violation of this subsection; or
(4) Knowingly uses, or endeavors to use, the contents of any wire communication, when he knows or has reason to know that the information was obtained through the interception of a wire communication in violation of this subsection.
Federal Wire Tap Act. 18 U.S.C. § 2511
Because the identity of the officer has yet to be reported and concerns that this might have been policy and practice where the Columbia Police commit felony wiretap on a regular basis. A “Special Prosecutor” is warranted to investigate this matter and avoid any appearance of impropriety. The integrity of attorney-client communications was violated by a surreptitiously recorded phone conversation that likely warrants felony charges against this officer and possibly the Assistant Attorney General involved. Only an independent review by a Special Prosecutor can determine if this was an isolated instance or part of systemic violations of law where on a regular basis Columbia police commit felony wiretap upon legally privileged attorney-client conversations for investigative use and/or to turn them over to prosecutors for improper leverage in resolving charges.
I’ve repeatedly called upon Boone County Prosecuting Attorney Daniel Knight since October 2016, to take the necessary steps to appoint a Special Prosecutor to review this incident and determine if Missouri’s Wiretap Law was violated and felony charges should be pursued against those police commit felony wiretap. I admit to being surprised by his response during our October 21, 2016, conversation about my prior October 11, 2016, request for him to appoint a “Special-Prosecutor” in the CPD recording of an attorney client privileged conversation involving Mr. Healea and his lawyer.
At the October 12, 2016, Bar Association lunch Prosecutor Knight acknowledged receiving my request. However, on October 21st Mr. Knight continued to state ‘I’ve not received anything yet,” indicating he hadn’t received a criminal complaint from any law enforcement agency, and implying that he lacked the ability to move forward until he received such a complaint. When I asked if he had made the appointment request or tasked a law enforcement agency with investigating this incident related to the Columbia Police Department’s felony wiretap incident he stated “I’ve not received anything yet,”. Prosecutor Knight has the ability to task the Highway Patrol, Boone County Sheriff’s Dept. or even CPD to investigate this felony or has within his office investigators with subpoena power available to them or could convene a grand jury to investigate.
I also reviewed an October 27, 2016, motion filed by Mr. Farrow, Mr. Healea’s attorney, in which he alleges a felony violation of the Missouri Wiretap Act by actions in which Columbia Police committed this felony wiretap. I have talked with several members of the local Bar Association who are concerned that this was not an isolated instance and that local law enforcement may have made a practice of recording attorney-client privileged conversations in violation of the Wiretap Act, S.Ct Rule 31.01, and RSMo. 600.048.3.
600.048. 1. It shall be the duty of every person in charge of a jail, police station, constable’s or sheriff’s office, or detention facility provided by any county to post in a conspicuous place a notice stating in effect:
(1) That every person held in custody under a charge or suspicion of a crime is entitled to have a lawyer;
(2) That if any such person is held in custody in connection with any of the cases or proceedings set out in section 600.042, and wants a lawyer to represent him or her and is unable, without substantial financial hardship to self or his or her dependents, to obtain a lawyer, the state will provide a lawyer to represent him or her upon request; and
(3) That if the state provides such a lawyer, the client may be liable to the state for the cost of the services and expenses of the lawyer who handles the case if he or she is or will be able to pay all or any part of such costs.
The notice shall also contain a listing of the cases and proceedings for which defender services are available under section 600.042, and the telephone number of a person or answering service to call to request that a person designated by the state public defender system visit and interview him or her, and provide further information.
. . . 3. It shall be the duty of every person in charge of a jail, police station, constable’s or sheriff’s office, or detention facility to make a room or place available therein where any person held in custody under a charge or suspicion of a crime will be able to talk privately with his or her lawyer, lawyer’s representative, or any authorized person responding to a request for an interview concerning his or her right to counsel.
Integrity of Justice
The integrity of our judicial system requires that law enforcement investigate this matter and it be independently investigated by a special prosecutor to resolve any concerns that the recordings of attorney-client conversations and their disclosure by law enforcement to the prosecution was not part of a pattern and practice of our local law enforcement instead of an isolated instance of when rogue police commit felony wiretap.
I had previously informed Mr. Knight about the Columbia Tribune’s October 06, 2016, article and provided it to him with the Columbia Missourian’s October 07, 2016 article reporting how a Columbia Police committed felony wiretap by recording an attorney-client communication. In addition to the violation of the Sixth Amendment, this was also a violation of Missouri’s Wiretap Statute, RSMo 542.400 et seq. for when police commit felony wiretap, it is a crime that deserves to be prosecuted.
The identity of the officer has yet to be identified and my concern is that this might have been policy and practice of the Columbia Police, and that a “Special Prosecutor” is warranted to investigate this matter to avoid any appearance of impropriety by an agenda driven police investigation handed to a self-interested prosecutor.
The integrity of attorney client communications being violated by a surreptitiously recorded phone conversation warrants felony charges against the officer(s) and possibly the Assistant Attorney General involved. Only an independent review by a Special Prosecutor can determine if this is an isolated instance or a systemic violation of law where Columbia Police commit felony wiretap on a regular basis.
The public should call upon Prosecutor Knight to take the necessary steps to appoint a Special Prosecutor to review this incident and determine if this violation of Missouri’s Wiretap Law was an isolated instance in which Columbia Police Officer(s) should be charged with a felony. The police are servants of the law and not above the law.
Attorney Stephen Wyse is available for questions and press inquiries related to this incident: 573-449-7755