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State High Court to Rule on Jail Phone Taps

Law: In a debate that goes back to the 1970s, panel will decide whether prosecutors can eavesdrop on inmates' conversations to gather criminal evidence.


Prosecutor Thomas Rogers was convinced that Christine Loyd had killed her mother out of greed. But he lacked enough evidence to charge the Bay Area woman, who was already in jail in another murder case.

Rogers solved the problem by taping calls Loyd made from jail. The tapes were played to the jury that convicted her.

The California Supreme Court will soon decide whether eavesdropping by prosecutors on conversations between inmates and their family and friends is permissible for gathering criminal evidence.

The legal debate over tapping jail phones for evidence without a court order goes back to the 1970s case of newspaper heiress Patricia Hearst, in which authorities recorded a conversation she had with a jail visitor and used it against her during her trial for bank robbery.

The state high court, then presided over by liberal Chief Justice Rose Bird, ruled in 1982 that the taping of inmates' calls and visits with family and friends was illegal if done for prosecutorial purposes. Calls could be monitored only for penal security--to prevent escapes, for example, the court ruled.

The court, now dominated by moderate to conservative Republicans, will decide in the next several weeks whether to overrule the precedent, and if not, whether prosecutors should be sanctioned for violating it.

A state Court of Appeal that considered the Loyd case in 2000 castigated Rogers, the Alameda County assistant district attorney. But Rogers, who the court said committed misconduct, insists the practice is widespread in California jails.

"I wasn't a cowboy going off and doing something that was completely unusual or out of line," Rogers said. "It was an accepted practice by the courts, the judges and other prosecutors in my office."

Ventura County Chief Deputy Public Defender Michael McMahon agrees that county prosecutors eavesdrop on inmates' telephone calls on occasion, but says the high court should stop the practice.

"The system could profit from a little bit of ethical behavior on the part of prosecutors," said McMahon, who represents the state Public Defender Assn. in the Loyd litigation.

The Bay Area murder case has reached the state's highest court at a time of increasing debate over government efforts to listen in on inmates' conversations. The federal government recently granted law enforcement officers limited authority to listen to inmates' conversations with their lawyers in cases of suspected terrorism.

Although California will continue to bar officers from eavesdropping on lawyer-client conversations, prosecutors say inmates deserve no such privacy when they are talking to friends and family.

"Do you think there is anybody around here who would like to see the people of Al Qaeda have the right to make private phone calls to their associates on the outside?" asked Mark Hutchins, an Oakland prosecutor who represents the California District Attorneys Assn. in the state Supreme Court case. "I think most people would say no. Lots of prisoners in California are just as dangerous."

Rogers said he ordered the taping of Loyd's calls because he needed evidence to charge her with the slaying of her mother, Myrtle Loyd. The 1991 death of the Oakland woman, who was found in her bathtub, had initially been classified an accident.

Christine Loyd, 57, worked for years as a manager of a medical insurance company. Divorced with no children, Loyd lived in an upper-middle-class home her parents had helped her buy in Contra Costa County, east of San Francisco. She had no criminal record or history of psychiatric problems, Rogers said.

At the time Loyd made the incriminating phone call, she already was in an Alameda County jail on charges that she killed Virginia Baily, 59, a Berkeley vitamin saleswoman whose finances Loyd had offered to manage and whose money prosecutors said she stole.

Baily was dead a year and a half before there was enough evidence to charge Loyd. Baily's body had been badly burned in a 1994 fire at her downtown Berkeley home, but an autopsy revealed the presence of maggots, indicating she had died before the fire. Loyd had purchased two 40-ounce cans of lighter fluid and a hose days earlier.

Prosecutors Learn of Mother's Death

While preparing to prosecute the Baily slaying, Rogers learned that Loyd's mother had died in what was classified as an accident three years before Baily's death. Myrtle, 76, was found dead in her bathtub with six lacerations on her head.

"I thought this was odd," Rogers recalled. "So I checked [Loyd's] financial status. Did she have money problems?"

Rogers said Loyd had not made payments on her house during the months before her mother's death. He said he saw a red flag when he learned it was Loyd who had discovered the body.

Loyd told police she found her mother when bringing groceries to her apartment near Lake Merritt. Loyd said she tried but failed to lift the body out of the tub and drained the water.

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