Playing Phone Tag With Jose Baez

UPDATE!
August 2, 2010

Judge Belvin Perry has made an ORDER that the Lunceford calls be released. Stating a great deal we read in Linda Drane Burdick's response, Perry essentially told Baez he had no expectation of privacy, something he should have already learned from the motion he had filed to seal the jail visitor logs.


The first news of Jose Baez' phone tag games with prison inmate Robin Lunceford came out at the end of the hearing on July 15. I wrote about the Status Hearing a few days ago and there is a summary of what occurred in court that day.

The short version is that Linda Drane Burdick had made Baez aware that she had been made aware of an "item" and was planning to get it from the DOC and would be making it available for discovery at some future time.

Baez responded that he had filed a Motion For Protective Order Regarding A Telephone Recording Of Robin Lunceford that very morning. In court, Baez hesitated as he gave up some information concerning a phone call with a prison inmate who was a "prospective witness".

Drane Burdick pointed out to Baez that she didn't have the "item" yet and that his motion was premature.

At that point, Judge Perry read the motion for a few minutes and asked Baez if the call had been recorded by the person or the institution. Baez answered, "the institution", at which point Perry, breaking from his normal demeanor gave Baez quite a look! Watch this video to refresh your memory!

Judge Perry then reminded Baez to notice the institution concerning the motion and ordered Drane Burdick to file a response to the motion. He also ordered her to provide the Court with a copy of the tape. At that point, Baez argued that it was an illegal recording and wouldn't want her to commit a third degree felony by listening to it! On July 20, Perry made a written ORDER TO STATE reiterating his oral instructions. Of note is this line:

It is further ORDERED that the Office of the State Attorney shall submit the telephone recording of Robin Lunceford to the Court for an in camera inspection.

Notice, it doesn't order her to provide a copy to Jose Baez. Perhaps Linda Drane Burdick and the judge were willing to face third degree felony charges, but didn't want Jose Baez to get in trouble? Ah, I think not! Based on the judge's reaction to knowing that the call was recorded by the institution made him feel free to listen!

Perhaps Baez should have paid more attention to Perry's body language and comment concerning Lawson Lamar being the one to decide whether or not to press charges. One has to believe that at that point in the hearing, the judge already knew the call was recorded legally. Baez should have also thought back to the different treatment given to the Joe Jordan tape. Nobody listened to it, not Drane Burdick, not Judge Strickland, not Judge Perry. How many "hints did Baez need to know the "illegal recording" argument will never wash in this case?

On July 21, Drane Burdick filed a Notice Of Provision Of Recording Under Seal For In Camera Inspection Re: Telephone Calls of Robin Lunceford.

Needless to say, these preliminary events and subsequent motions and responses have caused MSM and the Blogosphere to go wild. First up was to learn about Lunceford. A quick search of the State of Florida Active Inmates gave up a great deal of information. Among other things, she has 37 aliases and is currently serving a life sentence for robbery with a gun/deadly weapon. Such charges weren't unusual for her. In her record, we find that she has had 25 similar convictions and one for escape. She apparently went on quite a crime spree in October of 1986! She's only concluded the sentence for escape and, in addition, has been detained in other states.

Oh, and she's being investigated for those phone fraud schemes to make illegal calls out to unauthorized parties! Apparently, that's how Linda Drane Burdick learned of the call to Baez.

She's also considered the most prolific snitch in Dade County, frequently inserting herself into high profile cases. Anyone can Google her in about 30 seconds. I wonder if Baez ever did that? Perhaps not, he seems to think her a good prospective witness! That is, if the State even bothers to use Maya Derkovic or Robyn Adams. Personally, I don't think they are needed for their information. Perhaps Robyn Adams could be used to introduce the letters Casey wrote to her. They do contain some interesting bits and are all being verified by handwriting analysts in Quantico, Virginia.

So, it's over this inmate's phone call that Baez is making a big stink. Exactly why, we'll not know until it's made public.

His first motion, filed the day of the hearing provided some information about the calls.

1. Approximately two months ago, on an unknown date in May, the undersigned counsel received a call from an individual who advised the undersigned counsel that she was an ex-inmate at Lowell Correction Institute...

The inmate said that she had a friend still incarcerated who would be calling later that evening.

So, Baez knew from the get-go that the person who would be calling from a prison and that calls from prison are recorded. I am also surprised that Baez, like most attorneys didn't take note of the date of the call.

2. Shortly thereafter, the undersigned counsel was advised by his secretary after hours, that Robin Lunceford was attempting to reach him. The call was transferred to the undersigned counsel's cell phone...

3. ... the undersigned counsel was never made aware that the call was being recorded by either Robin Lunceford or the standard recording...

If she's in prison, how could Robin record it? That's probably because Robin made a call to her friend (who heard the notice) and then forwarded it illegally to Baez' office who forwarded it to Baez. If all that business is on the call, the judge will also know if that happened.

4. ... Many times inmates have access to telephones specifically designed for contact with attorneys (their own) and sometimes counselors allow inmates to make non-recorded call, (alone?) and on certain occasions inmates obtain contraband cell phones.

But, if the call had been made on a contraband cell phone, wouldn't Baez, as an officer of the court, have a duty to inform the prison of that?

The remainder of the motion argues that since he wasn't aware the call was being recorded, it should fall under F.S.934.03 and F.S 934.06. These were the rules that covered the surreptitious tape made by Joe Jordan.

On July 23, Baez filed a Supplemental Motion for Protective Order Regarding a Telephone Recording of Robin Lunceford. Obviously, Baez had thought some more about his original motion and had some information to add.

He indicated that the call in question was forwarded from his office to the secretary and then to him. That adds one more transfer to the Phone Tag Game. Robin calls friend who forwards to Baez' office which forwards it to the secretary who forwards it to Baez. Do I have that right? This process would clearly separate Baez from being personally notified this call was being recorded at the prison!

In this addendum, Baez also takes a step back from saying "he was never made aware" of the call being taped to he has "no recollection of hearing any recording" by the prison.

Now, Baez is making more claims about the call:

3. The undersigned maintains that the call contains work product information.

There is no reference here to any reason why it would be work product, there are no legal references in the entire addendum, for that matter.

4. In said call, information is given to the undersigned counsel including the names of more potential witnesses.

Oh yeah! I can see this at trial. He'll have ten witness to say, I heard them plotting against Casey Anthony! Now, cut me a deal!

He goes on to say that he has discussed making arrangements to go to the prison to depose these "witnesses" with Linda Drane Burdick.

Finally, Baez asks for time to investigate the claims if the judge does not agree that the contents are work product. Heck, LE doesn't have to turn over information before completing an investigation!

Well, needless to say, Linda Drane Burdick did as ordered by the judge; she submitted her response on July 26. In the State Of Florida’s Response to Defendant’s Motion for Protective Order Regarding Telephone Recording of Robin Lunceford, she begins by saying

The initial motion filed by counsel... seeks to "exempt from dicovery a statement" of Robin Lunceford pursuant to Florida Rule of Criminal Procedure 3.220(I)(1) which allows that specified disclosures of materials be exempted from discovery upon a showing of good cause. As the defendant is not in possession of the recording, her reliance on this Rule of Criminal Procedure appears to be misplaced. The remedy the defendant seeks is more accurately described as a request to exempt the recordings from the Public Record provisions of Florida Statute 119. The defendant also claims that the call was illegally recorded and therefore a violation of Florida Statute 934.06, or alternatively, that the call contains attorney work product.

There it is! A complete summary, with appropriate legal references to make it all make sense! She continues by indicating that she listened to the tape.

Section 2 of this response is worth a full read. It describes the calls and quotes lightly from them. Apparently, it took a bit of arranging to have the final call come through. Drane Burdick stated that

Mr. Baez hears the same warning detailed above and accepts the call. The inmate immediately advises Baez that she only has "15 minutes." Later in the call, Robin Lunceford advises Baez that she is not telling him everything she knows because "these phones are recorded."

Drane Burdick has "vented" a bit in this motion in her rather polite manner.

3. ... After being advised by the undersigned that the warning did occur a the beginning of the call, counsel filed his Supplemental motion which claims "absolutely no recollection of hearing any recording by the correctional facility." Regardless of the state of Mr. Baez' faulty recollection, it is clear that the call was not unlawfully intercepted communication...

That argument reminded me of the old saying, "If a tree falls in the forest and no one is around..." Is Baez' statement that he doesn't remember the notification mean it didn't happen?

She continues her discussion of the issue and concludes it by stating

It takes little imagination to envision that calls being received from a prisoner in a correctional institution are being recorded negating any reasonable expectation of privacy Mr. Baez may believe he had in the call.

She then goes on to discuss the fact that the call is not work product and cites the applicable laws and decisions to back up her position. I'm not an attorney and the discussion of work product is very complicated. Suffice it to say, she believes it isn't that. The part of her argument I understand best is that

4.... it is clear that other normally privileged communications lose their privileged status when the communication is overheard by a third party.... Jose Baez and his assistant Michelle Negron knew or should have known that their telephone communications with state prison inmate Robin Lunceford were not confidential and could be overheard by prison officials resulting in a waiver of any possible work product claim.

At the end of her response, Drane Burdick indicates that she takes no position on the issue of sealing the recording. She does, however ask the judge to deny the motion.

The (hopefully) final chapter of this Phone Tag Game came from Jose Baez yesterday when he filed a Response to State of Florida's Response to Defendant's Motion for Protective Order Regarding Telephone Recording of Robin Lunceford. I am at a loss to explain why this recording means so much to him. Does he really believe that Lunceford, who has never met Casey Anthony, is worth so much of his time and energy? According to Linda Drane Burdick,

Both calls are dominated by the rantings of Robin Lunceford against Maya Derkovic as a result of an argument between the two.

Well, anyway, Baez has presented a response that looks nothing like anything he has written before. It's almost as though somebody else wrote it. Even the quality of the printing on this motion is superior to anything I've seen from his office. It is well written in fluent language with numerous legal references. There is also some vitriol towards the Assistant State's Attorney.

Baez claims that it is still a Chapter 119 issue and one of privilege. He then goes on to say

1. ...Having the benefit of the recorded conversation Ms. Drane Burdick (who takes no position) took the opportunity to personally attack the undersigned and his recollection of the recording. This is a specious argument as it is clear that both the State and the Court have copies of the tape, and the undersigned does not. Without having the benefit of the tape the undersigned must rely solely on his memory of a call that occurred two months ago. This is a difficult task a clear example of this is reflected in the initial pleading by the defense, which could not even remember the date of the call. There is still no certainty as to hearing any recording as the call was transferred twice before the undersigned ever came on the line.

I still have to say, a good lawyer takes notes! The devil is in the details, Mr. Baez. If this call was so important to you, why not make note of it. In such a complicated case with so much information, I would think it would be something he should do automatically.

In the first paragraph, Baez also reminds readers of the means by which a prison call could be made without being recorded. Three things are different here, though.

An inmate can inform the jail that they are calling their attorney and the call will not be recorded.

I'm sure the prison has the attorneys' names and numbers on an approved list at the PRISON.

An inmate can call from a counselor's office and may inform the counselor that the call is being made to an attorney to seek representation.

Did Lunceford call for that purpose? No!

Inmates often call individuals who make three way calls to other individuals.

This is the reason Lunceford was being investigated. She'd been making such calls so that she could speak to UNAUTHORIZED people not on her list. This is exactly what happened in this case and Jose Baez is well aware of the fact.

The second paragraph is very strange. In the supplemental motion Baez clearly stated:


4. In said call, information IS given to the undersigned counsel including the names of more potential witnesses. (Caps and bold mine)

In the response, Baez says:

2. The undersigned has also made the Court and Assistant State Attorney Linda Drane Burdick aware that the other witness names that were obtained MAY also have not come from the call but from other communications. (Caps and bold mine)

Baez then goes off on a rant about how difficult it is with such a complicated case to remember all this stuff. It's worth a read. He also attacks Drane Burdick for telling him the tips were available and they weren't. I'm not quite sure how this fits into the motion. Was Ms. Drane Burdick given wrong information she passed along? What does that have to do with his memory?

There's more to the motion, including what constitutes a waiver when a third party is present and the nature of the work product.

Baez ends up by indicating he and the State could depose Lunceford and that he really wants a copy of the recording!

I don't know about all of you, dear readers, but I'm up to here with this nonsense. Please chime in and tell me what you think!