The widespread dissemination of the recordings, which captured calls pertaining to multiple criminal cases pending in federal court in Middle Tennessee, worries some defense attorneys, who argue it violates the attorney-client privilege. But some of the attorneys who were given the recordings are fighting efforts to have them returned in case some of the information could help their own clients — even at the expense of the other inmates whose conversations were recorded.

Sheriff’s department spokeswoman Karla Weikel said the department would not comment on an ongoing case and referred comment to Metro’s legal department, which referred all questions to the U.S. Attorney’s Office.

U.S. Attorney Jerry Martin said the government has a policy to ignore any conversations between defendants and attorneys that inadvertently come into their possession. Martin and Assistant U.S. Attorney Van Vincent say they are trying to stay out of the argument because it is really between the defense attorneys — the ones who want to keep the recordings and the others who want them returned.

“It’s our policy not to listen to those calls,” Martin said. “The controversy arises because there’s criminal defense lawyers in town who want to listen to other defense lawyers’ calls.”

U.S. District Court Judge William J. Haynes Jr. has been asked to rule on the matter.

Attorney notices calls

Here’s how the recordings came to light:

As part of its investigation into a Somali sex-trafficking ring, the U.S. Attorney’s Office requested recordings of inmate phone calls from the Metro Jail. Inmate calls to family and friends are not considered private and are subject to recording.

Prosecutors’ request for the phone calls cast a wide net because of inmates’ common practice, against jail rules, of swapping the PIN numbers they use to make phone calls. The assistant U.S. attorney said that when prosecutors learn that a particular inmate has been using another’s PIN, they will request calls made using the latter inmate’s PIN as well. When prosecutors can identify a phone number commonly called by an inmate they are interested in, they also may request all calls from the jail to that number.

Before trials, prosecutors are required to share information with defense attorneys about a case. In January, attorneys for each of the 29 defendants in the sex trafficking case received a binder from the U.S. Attorney’s Office with 142 CDs containing the jail calls and other recordings.

One of the attorneys, Patrick Frogge, realized the CDs contained hundreds of calls placed to his firm, Bell, Tennent & Frogge, over about a year. The calls did not pertain to the sex-trafficking case, Frogge said.

He and the U.S. Attorney’s Office quickly reached an agreement and drafted an order to have the CDs containing those calls recalled and redacted. The U.S. Attorney’s Office also drafted an order that would similarly deal with any other calls determined to be between inmates and attorneys.

Haynes decided to give all of the attorneys time to respond and ordered them and their clients not to listen to the CDs in the meantime.

No rush to return CDs

Even though federal prosecutors said they do not listen to inmates’ private conversations with defense attorneys, that doesn’t satisfy Jim Price, an attorney representing one of the defendants in the sex-trafficking case. He said the prosecutors should never have gotten the inmate-attorney recordings from the sheriff in the first place.

“The government had no business getting them or reviewing them,” Price said.

Now that they have the recorded calls, some of the attorneys and their clients aren’t in a hurry to give them back.

Defense attorney Jennifer Thompson said the judge needs to decide whether the recorded phone calls are privileged information, and if not, she would oppose returning them and having them destroyed. She said that the calls could relate to clients in other cases, and that she didn’t want to give up a potential right to information that could help another client.

At least seven of the defendants have filed motions opposing the proposed restrictions on the use of any of the recordings on the 142 CDs.

Precedents are rare

There is little case law on the subject in Tennessee.

In a 2008 Indiana Supreme Court case, the court ruled that an inmate’s telephone calls to his attorney were not privileged because the phone system played an automated message before each call that stated the call “may be recorded.” A 2010 federal ruling in New York found the recording of telephone calls between inmates and their attorneys “disturbing” and a violation of attorney-client privilege.

Henry Martin, federal public defender in Middle Tennessee, said he’d rather not have to take prosecutors’ word for it that they don’t listen to the conversations. He doesn’t understand why the U.S. Attorney’s Office would turn over inmate-attorney phone calls to defense attorneys in the sex-trafficking case.

“I think they’re sharing things that shouldn’t be shared,” he said. “If they knew it was there, I’m not sure why they would disseminate it to everyone in the case.”

The U.S. attorney said his office didn’t cull the recordings it turned over because its policy is to be as forthcoming as possible when sharing pretrial information with defense attorneys.

Contact Brandon Gee at 615-726-5982 or.