The Law Offices of Kathleen Colton, Ltd.
Criminal Defense / P.O. Box 1364 / St. Charles, IL 60174
Jail's reading mail Attorney rips 'sneaky' system of
monitoring some inmates' letters
Aurora Beacon News
September 9, 2007
Outside of TV and movie screens, there are few surprise witnesses at criminal trials. In real life, attorneys exchange witness lists before the trial and everyone has a pretty good idea of what people are going to talk about on the stand. So maybe Hugh O'Connor is about as close as you get to a courtroom shocker. When he took the stand during the first of Aurora's "cold-case" murder trial in early August, the Kane County jail employee stunned defense attorney Kathleen Colton. I kind of almost fell back in my chair like someone had punched in my chest," she said. In his testimony, O'Connor revealed for the first time that while his title within the jail was mail room clerk, he had other duties.
For three years, O'Connor has also been monitoring the mail of certain inmates. Working off lists provided by the West Suburban Violent Street Gang Task Force, Aurora police and the FBI, O'Connor said he routinely opened, read and sometimes copied letters to or from inmates which he determined to be relevant to their criminal cases. Colton immediately protested that the jail -- where suspects awaiting trial are held -- had no right to keep a file on her client, Jose Salinas, who was later convicted in the 2000 killing of 22-year-old Luis Donatlan in Aurora. "I don't know how much more obvious this could be that this violates Mr. Salinas' rights," Colton told the judge that day. "You don't give up your rights when you're incarcerated."
Judge Patricia Piper Golden agreed with Colton, ruling the copied mail was inadmissible, but she left the door open to allowing such evidence in the future. Colton, who is representing several other cold-case defendants, said this will become an issue again. But the Kane County state's attorney's office and the jail say the program is a legitimate way to monitor inmates, control the jail's atmosphere and help prosecutors.
"They're in jail," said Kane County Lt. Pat Gengler. "By virtue of being in custody they give up certain things. If they don't want to have their phone calls listened to, their mail opened, their visits monitored, they should make a different choice in life." 'This call is being recorded' The phone call and mail monitoring program began about three years ago as a way keep control of inmates. The majority of the mail and calls were pedestrian -- "I love you" or "How are the kids?". But some inmates went further, writing to friends about the evidence in their case. "That's when we started realizing we have a lot of information that could be useful," Gengler said. There are thousands of calls and letters going in and out of the jail, any of which can be monitored. So, as a way of narrowing their focus, the jail receives lists of "targeted" inmates from the FBI, Aurora police and the task force. The program has been successful, Gengler said. It has helped catch gang members giving street instructions from behind bars, men charged with domestic abuse contacting their victims, and even a jail employee who had inappropriate contact with an inmate. Gengler said the inmates should know they're being monitored. Each time the phone is picked up the inmate hears: "This call is subject to recording and monitoring."
Calls and mail to attorneys, judges or the sheriff are not monitored. Violation of rights? When someone is brought to the jail, they're given a packet that mentions all mail is checked for contraband (like drugs or weapons) and gang insignias. But the guidelines, which were written before current Sheriff Pat Perez was elected, do not specifically say the mail will be read. And there is no mention that mail could be copied for a file. "You're right, it doesn't say anything about copying letters," Gengler said during a recent tour of the jail. "As it stands right now this is something that's a practice that we're going to continue to do as long as the state's attorney says you're well within your rights."
But Colton sees the program as a violation of the Fourth Amendment -- the right to be free from illegal search and seizure. Colton says copying the mail is done in a "sneaky secret fashion." "Their (the jail's) own regulations do not even provide for this," she said. Colton also contests targeting certain inmates rather than checking all mail. "Why would this be less egregious than the FBI sending a list of 50 black defendants or 50 Hispanics or 50 white defendants?" she said. "How is it different just because people are alleged to be gang members? "Being in a gang is not a crime," she said. "I'm sure if any legislature could make it a crime, they would." Colton won her argument during the Salinas trial. But she worries other inmates' files will become an issue during future trials. "I understand the attitude in this country is: it's all right as long as my rights aren't violated," she said. "If this was you, if your son in jail happened to be on this list, you would be offended."
