Criminal
Aug. 9, 2002
More Opening Salvos
SAN FRANCISCO - When Symbionese Liberation Army murder defendant Michael Bortin phoned his wife from jail in Portland, Ore., following his January arrest, an official tape recorder picked up every word.
San Francisco defense lawyer J. Tony Serra now claims Sacramento County prosecutors are unfairly trying to use the tapes against Bortin, his client.
At a hearing today before Sacramento County Superior Court Judge Thomas M. Cecil, Serra's colleagues James Bustamante and Alexandra Clay plan to argue that prosecutorial use of the recordings would violate the Constitution and federal wiretap laws.
Use of Bortin's jail tapes in court would unfairly penalize an inmate eligible for bail but unable to raise the money, despite the 14th Amendment's guarantee of equal protection to all, Bustamante said.
SLA prosecutors Rob Gold and Mark Curry, of the Sacramento County district attorney's office, assert in court papers that they're entitled to use the tapes because prisoners are warned that phone calls are subject to monitoring and recording.
Gold said Tuesday that the dispute may have arisen out of lingering ill feelings between the office of Serra Lichter Daar Bustamante Gilg & Greenberger and prosecutors in Los Angeles in a previous SLA case.
Serra denies it. He formerly represented Sara Jane Olson, who pleaded guilty in January to the attempted bombing of two Los Angeles police cars in the mid-1970s.
Olson, now represented by Shawn Chapman, of Vorzimer Masserman & Chapman of Beverly Hills, is one of the defendants in the current murder prosecution.
In May 2000, Los Angeles prosecutors charged Serra with two criminal misdemeanors for disclosing, on an Olson fund-raising Web site, the phone numbers and addresses of two police witnesses in the bombing case.
A judge dismissed the charges, but the State Bar publicly reproved Serra over the incident.
Next, pressure from Los Angeles prosecutors reportedly helped persuade Sacramento authorities to take another look at the SLA's role in the 1975 bank robbery slaying of Myrna Lee Opsahl - leading to Bortin's prosecution.
Gold suggested Tuesday that Serra is still angry at the Los Angeles district attorney's office for his problems with the State Bar and for promoting the Opsahl murder case. Now Serra has transferred his feelings to Sacramento prosecutors, Gold thinks.
"I know he had his troubles in Los Angeles, but we've been very open with his office," Gold said. "This big bad government picking on a poor little defendant stuff gets old."
Serra rejected the idea that he holds any animosity toward his Sacramento adversaries.
"No, a thousand times no," he said Tuesday. "I harbor never revenge or spite. The Sacramento prosecutors have nothing at all to do with the misdemeanors that were dismissed in Los Angeles. The Sacramento prosecutors have treated us, in most instances, very civilly and fairly.
"I believe there's been a violation of law [regarding the tapes], and my colleague Jim Bustamante is pursuing that. I'm not a motion guy, I'm a jury trial specialist."
Serra and Bustamante's motion to suppress the Bortin tapes points out it's not the first time Gold has employed hard-nosed tactics with defendants in custody.
Defense lawyers in a 1999 capital homicide trial accused Gold of illicitly searching the jail visitor records of a defendant. The judge in that case ordered Gold to end the searches.
"He likes to bring that up," Gold said of Serra. "That was a death penalty case, and it had nothing to do with telephone calls."
The facts of the current situation - Bortin placed the phone calls while in pretrial detention trying to make bail - create an issue of first impression, lawyers said.
Prosecutors also recorded conversations of SLA defendants while they were in custody at the Sacramento County Jail, the defense said in court papers.
A prosecution investigator listened to about 41/2 hours of the Sacramento jail recordings and heard some of the defendants discussing trial preparation, the defense said.
Even so, the content of the tapes isn't likely to be damning, Bortin's lawyers believe.
"There's no smoking gun on those tapes," Bustamante said Monday. "I'm litigating this on principle. Pretrial detainees have the same presumption of innocence as those out of custody, and prosecutors should have to go through the wiretap procedure with a judge if they want to tape them."
It's another twist in the SLA murder case that matches former radicals Bortin, Olson, William Harris and Emily Montague against former captive-turned-prosecution-witness Patricia Hearst. People v. Montague, 02F00525.
Last week, the defendants pleaded not guilty and asked the judge to order psychiatric testing of Hearst. A preliminary hearing is set for Nov. 12.
Bortin allegedly was part of an SLA robbery squad with the other defendants and is said by prosecutors to have held the door open for Opsahl when she entered the bank to make a church deposit.
He has denied he was at the bank in Carmichael, a Sacramento suburb.
He was arrested Jan. 16 in Portland after Sacramento County District Attorney Jan Scully opted to revive the long-dormant case.
Confined initially at Oregon's Multnomah County Detention Center, Bortin made 21 phone calls to his home before he was moved to a Sacramento lockup, according to defense documents. He was freed on $500,000 bail on March 15.
The clash over the tapes involves defense claims of bad faith as well as constitutional issues.
The defense asserts that investigator Shawn L. Loehr, of Gold and Curry's staff, asked Oregon officials to record Bortin's calls, then contradicted himself in a second message that requested no recordings be made for the benefit of the prosecution.
"Where Loehr's report falsely stated that he did not request the monitoring and recording, the veracity of his entire report is in question," asserts a defense motion for a protective order sealing the tapes.
Gold shot back in the interview Tuesday: "I took offense to [Serra] calling our investigator a liar.
"Even if all of it was true, and it's not, it misses the point. It's routine that inmates are taped. And if they say something incriminating, it can be used against them."
Gold and Serra's office agreed in March to put the issue on hold while the state Supreme Court decided an analogous inmate phone tape case.
But the May 6 majority opinion in People v. Loyd, 27 Cal.4th 997, did not address whether the recording of a defendant's conversations violated federal law.
Instead, Loyd simply concluded that California law permits officials to monitor and record unprivileged communications between inmates and their visitors to gather evidence of crime.
But as Justice Carlos R. Moreno made clear in a concurring opinion, Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968 "still restricts the warrantless monitoring of an inmate's outbound telephone calls."
Moreno cited 18 U.S. Code Section 2518 in explaining that the crime control act requires a judicially authorized warrant before wiretapping takes place. Exceptions are made for a law officer operating "in the ordinary course of his duties" and for cases in which one party give prior consent to the tap, Moreno wrote.
That means monitoring is permissible only for routine security screening, not for gathering evidence against an inmate, Bortin's defense lawyers assert.
"The facts of this case demonstrate that the monitoring and recording of all of Mr. Bortin's telephone conversations from the Multnomah County Detention Center were done at the direction of the Sacramento County District Attorney's Office's criminal investigations unit, [which] had no specific interest in the security at the out-of-state facility," Serra's office wrote in a pleading.
In reply, Gold and Curry cite an Oregon Court of Appeals case, State v. Wischnofske, 129 Or.App. 231 (1994), which holds that defendants must establish a reasonable expectation of privacy in an intercepted communication before a statutory violation occurs.
Bortin could have had no such expectation, Gold and Curry wrote.
Cecil has issued no preliminary ruling on the issue.
After the SLA defendants were arrested in January, a Daily Journal reporter asked Gold whether he intended to look at their jail records, referring to Gold's searches of visitor records in the 1999 homicide case. People v. Hronis, 94F07295.
Gold left the issue open, pointing out that the SLA prosecution is not a capital matter.
"If it's legal, we're going to do it," he said.
John Roemer
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