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The landmines of inmates’ pretrial conversations with friends and family — all recorded

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Last year, Fairfax County, Virginia, Judge Thomas Mann’s daughter Grace was killed by one of her housemates, Steven Vander Briel, in Fredericksburg, Virginia, which is around one hour down the road from my office. Briel today was convicted of murdering her.

I have appeared before Judge Mann prior to and subsequent to his daughter’s killing, and my sadness and dismay over this killing is a given.

Our society is overridden with violence. No magic antidote is going to stop it. This trend will only be reversed by a widespread overhaul of how people approach and deal with each other. Harsh criminal penalties have not been the answer and will not be the antidote.

In Briel’s instance, his lawyer unsuccessfully argued innocence by reason of insanity. The Washington, D.C., NBC website asserts about Briel’s murder trial: “The most powerful prosecution evidence came at the very end: A jailhouse phone call from Briel to his parents, recorded two weeks after Mann’s death. Jurors heard a completely normal-sounding young man chatting and joking with his parents about books and jail food.”

At some point, people detained pending their criminal trials — and their friends and family — let their guard down that all their conversations (save attorney-client communications, ordinarily) are tape-recorded and often reviewed and used by law enforcement and prosecutors. The dynamic may be similar to the lull that too many people have that their Internet surfing is anonymous when just the opposite is at work. With inmates, a breaking point likely arrives where they get at wit’s end only being able to talk openly with their lawyer, so many let their guard down and talk about things with their family and friends that they should not.

In discovery in several cases, prosecutors have provided me tape recordings of my clients’ jail calls with their relatives or friends, which they must do if they want to introduce those conversations at trial. Most of the discussions are very mundane, so mundane that police and prosecutors need to pick and choose which inmates’ recordings to listen to, and how many to listen to.

Just as I sometimes wonder how much I am urinating in the wind to be urging people since the inception of my website in 1999, to beware speaking with police when they are a suspect, agreeing to police searches, and agreeing to field sobriety tests in DWI cases, I hope I am not doing the same by reminding future inmates that your phone and live conversations with friends and family from the jail will be recorded, and may be reviewed to your detriment. Even if you think you are saying innocent things, your words can be twisted against you.

Back to Steven Briel, would he have still lost his insanity defense even absent NBC’s claimed smoking gun of his recorded phone conversation with his parents? Particularly knowing little about his trial, I do not know. I do point out that his so-called smoking gun conversation did not even involve the case against him, and still the tape was of no help to him.

Before the Internet and GPS on cellphones were introduced, people enjoyed much more privacy than today. So many people become accustomed to our limited privacy that inmates perhaps let their guard down all the more when talking, pretrial, with friends and relatives. The fallout for inmates’ doing so can at times be devastating.