After Defendant Expresses Concerns about Confidentiality, Court Learns Zoom Unavailable for Private Counsel


By Tiffany Devlin

SACRAMENTO – The pandemic has introduced Zoom as the primary replacement for court hearings, the “new normal,” but it may have a downside when it comes to attorney-client confidentiality.

At least that’s what defendant Lionell Gillespie expressed concerns about this week in Sacramento County Superior Court, claiming that confidential phone calls are not set up for private counsel, like his attorney John Wenrick.

In fact, after Gillespie’s concerns were made public in court, it was learned the jail does not yet have a way for private lawyers to speak with in-custody defendants, although public defenders do have the means to do so.

Gillespie is charged with attempted murder, possession of a firearm, possession of ammunition, possession of an assault weapon, and possession of marijuana for sale.

While Wenrick requested to continue to Dec. 14, Judge Patrick Marlette reasoned that due to the severity of the charges the parties may not be able to get anything “meaningful” done in that short amount of time, and proposed to bring the case back on Jan. 25.

When Wenrick asked defendant Gillespie if this was okay, he replied, “I mean, not necessarily.”

“They’ve gotta get all the reports and everything like that,” said Judge Marlette, “I can bring you back earlier but it’s gonna be for you and me to say ‘hello’ and for them to tell me when the next date is.”

“Do I know how long until I have a copy of my own discovery?” Gillespie asked.

Wenrick interrupted, saying that as soon as Deputy District Attorney Timothy Carr gives him the discovery, his first order of business will be to redact the discovery and give it to Gillespie.

“You will get it within a day or two of my getting it,” said Wenrick, “and this has a gang enhancement, and there are other forensic aspects of the evidence in this case as in all cases of its kind. So it’s gonna be a lot of discovery, but you’ll get it as fast as possible and I would say probably within a couple weeks.”

Gillespie agreed to come back on Jan. 25, but then asked Wenrick about the gang enhancement. Judge Marlette suggested to Gillespie that these conversations should be confidential with his attorney.

“Just the note that I have when the assignment was given to me. The handwritten note of the public defender says ‘gang enhancement.’ I don’t know. It’ll be up to Mr. Carr as to whether or not that comes into play.” said Wenrick in response to Gillespie.

Gillespie continued to ask questions about the gang enhancement, at which point Judge Marlette intervened and said that the district attorney is taking notes, and that anything he said can be used against him.

After Gillespie was told again that he should have a confidential conversation with Wenrick, the defendant questioned how this would occur.

“He’s not able to come visit or see me in person, and/or me having to contact him without being under collect calls or anything,” Gillespie explained, “everything is monitored, so how would I have a confidential meeting with my attorney if that’s not possible?”

Judge Marlette tried to assure Gillespie that attorney visits are not monitored, however Gillespie fired back saying that it is not possible due to Wenrick’s high risk status for contracting COVID-19.

Judge Marlette asked Wenrick if there were Zoom visits in place for attorney visits, to which Gillespie interjected saying that Zoom visits are not allowed unless you are a public defender.

“That’s correct, your honor,” said Wenrick agreeing with Gillespie, claiming that the Zoom visits are not set up for private counsel. “But there is a system that they’re working on…”

“That they’re working on?” Gillespie questioned, “So the system’s not up and running?”

“There’s a system for confidential phone calls they’re working on,” Wenrick continued to explain, “… it’s kind of off-and-on because of some technical problems, but I think it’s close to coming into play.

“I understand your concern about confidence and so forth on the collect calls, but now’s not the time to be talking about details of your case anyway. Even if I were to come see you we wouldn’t talk details, and I’ll explain the reasons for that when you call me,” said Wenrick.

Judge Marlette then stopped Gillespie from discussing his case further, and Gillespie wasn’t happy. The case will return on Jan. 25.

Tiffany Devlin is from Richmond, California, and she is a fourth-year student at San Francisco State University majoring in Criminal Justice Studies.

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About The Author

The Vanguard Court Watch operates in Yolo, Sacramento and Sacramento Counties with a mission to monitor and report on court cases. Anyone interested in interning at the Courthouse or volunteering to monitor cases should contact the Vanguard at info(at)davisvanguard(dot)org - please email info(at)davisvanguard(dot)org if you find inaccuracies in this report.

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