An executive with the company that provides jail phone services for the Orange County Sheriff's Department testified Thursday that "human error" led to the improper recording of more than 1,000 calls from inmates to attorneys.
George McNitt, vice president of technical services for Global Tel Link Corp., testified that he and his brother authored the software the sheriff's department now uses for its jail phone services. McNitt blamed unspecified "human error" for the failure to transfer over phone numbers that should have been kept private from the Lazerphone system to the new Internet Calling Manager system in January 2015.
McNitt also testified that two law enforcement agencies in Florida had reported the same problem of phone calls from inmates to attorneys being recorded. Those calls are meant to be kept private, and law enforcement is prohibited by law from listening in on those calls because it would give investigators an unfair advantage in legal strategy.
Mark Harvis, a deputy public defender with the Los Angeles County Public Defender's Office, was sitting in on the testimony in Santa Ana this morning because of concerns the same issue has cropped up in Los Angeles County.
McNitt testified that sheriff's officials in Los Angeles County have requested an audit.
The hearing stems from a motion filed by Joshua Waring, the son of a former "Real Housewives of Orange County" cast member, to have attempted murder charges against him dismissed based on allegations of outrageous governmental misconduct. Records previously provided by GTL indicated that two of Waring's phone calls were improperly recorded, but McNitt indicated in testimony that it may only be one because of a "duplicate" generated by research of call logs.
Waring's attorney, Joel Garson, has alleged it appears that some of his client's phone calls were recorded and listened to by authorities when the defendant was representing himself without a lawyer. That violated a court order prohibiting the recording of those calls, Garson has argued.
Deputy District Attorney John Maxfield said in court Thursday that he has four of those calls and has heard the recordings. He indicated that in two instances, the calls were made by other inmates who were using Waring's booking number.
A list of "do not record" phone numbers that were on the Lazerphone system was supposed to be transferred to the new ICM system in January 2015, but that wasn't done, McNitt testified.
"Human error caused that list to not get loaded," McNitt said. The unnamed employee who made the mistake is "no longer with the company," McNitt said, adding the staffer left a year ago.
There were supposed to be 1,309 phone numbers transferred over to the new system, McNitt testified. In all, 58 calls were accessed 87 times, he said.
About 1,200 numbers were added back to the "do not record" list in June as the Waring motion was being considered in multiple hearings, McNitt testified.
Under questioning from Garson, McNitt admitted the company did not contact any other vendors after hearing about the improper recordings of calls in Florida.
"We had no reason to believe it was happening anywhere else," McNitt testified.
One of the main issues in Waring's case will be whether the issue will deny him a right to a fair trial, Garson said.
"It seems like every time you turn around, something pops up in this case," Garson told reporters during a break in the hearing. Garson said a crime scene sketch went missing, as well.
So far, the issue has affected the case against Shazer Fernando Limas, who is charged with killing his girlfriend and their two sons, ages 1 and 3 months. It appears 34 phone calls made by the triple murder defendant were recorded over the past few years.
Also, in mid-April 2016, Senior Deputy District Attorney Cindy Nichols, the prosecutor on the Waring case, received a copy of a recorded conversation between Hossein Nayeri and his attorney, Sal Ciulla. Nayeri was one of three inmates who staged a daring jail escape as he awaited trial on charges of directing the kidnapping, attempted extortion and sexual mutilation of a medical marijuana businessman. He was on the run for about a week before being caught.
When an investigator told Nichols, who was prosecuting Nayeri for the jailbreak, about the recording, she did not listen to it and immediately alerted Ciulla and the judge and turned it over to them because she understood it was privileged information she was not allowed to access. Her supervisor, Assistant District Attorney Ebrahim Baytieh, kept Nichols on the case, but reassigned investigative duties to Tom Conklin, who later claimed whistleblower status in another case and sued when he was put on leave.
A special master who was appointed to go through inmate phone calls unrelated to the Waring case did not show for a hearing this morning, so Orange County Superior Court Judge Gregg Prickett rescheduled the hearing for next Wednesday.
Waring is the son of Lauri Peterson, who was a "Real Housewives of Orange County" cast member from its debut in 2006 until 2008. He is accused of shooting then-35-year-old Daniel Lopez outside a home in Costa Mesa on June 20, 2016. Two other people escaped injury in the drive-by attack.