Defense attorneys for Bradley Young, the man accused of killing Madison Twp. toddler Kinsley Kinner, are asking for all charges to be dropped because attorney-client phone calls have been recorded at the county jail, which violates Young’s constitutional rights.
“The Butler County Sheriff’s Office and the State of Ohio have purposefully, intentionally and deliberately violated Mr. Young’s constitutional right to counsel by interception and recording of his telephone conversations with his attorney,” attorneys Frank Schiavone IV and Frank Schiavone III said in a motion filed late Monday.
Young, 26, the boyfriend of the 2-year-old’s mother, Rebekah, is charged with murder, felony endangering children and involuntary manslaughter after he allegedly beat the toddler to death. The defense team says all those charges should be dismissed because of the violation. Young’s trial is scheduled to begin Monday in Butler County Common Pleas Court.
Butler County Prosecutor Michael Gmoser, however, said there is no indication of wrong-doing.
“We are not trying this case based on jail phone calls,” he said.
Gmoser said neither he nor anyone in his office has listened to the calls and were unaware they existed until the defense filed the motion. It is routine for the prosecution to turn over all recordings and statements from the defendant to the defense.
“I do not know what was said in the recordings,” Gmoser said.
A warning that phone calls are recorded is marked by phones in jail pods and in the booking area, which are available for use by inmates, according to Butler County Chief Deputy Anthony Dwyer.
A notification is also posted where attorneys enter the jail, stating “Attention all Legal Representatives: All telephones are electronically monitored for safety and security of the facility. Attorneys, courts and legal representative may contact our telephone provider to set up the verification process in order to have calls made to them unmonitored.”
“All phone calls in the jail are recorded and have been since this jail was opened,” Dwyer said.
Dwyer said he believes most, if not all, of the phones available to inmates give a warning, but he could not say for certain Tuesday that all do. He noted technology changes and equipment is upgraded, so he is not certain all phones have been tested for the warning.
“But still it is clearly marked and stated in the inmate handbook,” Dwyer said.
While the defense was preparing for trial, “it came to light that these privileged communications had been recorded,” the Schiavones said in the motion.
The phone calls in question were placed by Young from the jail at 9 p.m. Dec. 11 and at 5 p.m. Dec. 15, according to the defense. The first call lasted about 4 minutes and the second lasted 3.45 seconds.
“The discussion between defense attorney Frank J. Schiavone IV and client Bradley Young consisted of questions and answers directly associated with the defense of Bradley Young,” the motion states. “Butler County sheriff’s began acting on information received and further acted to interfere with the representation of Bradley Young.”
A total of six calls were placed by Young to Schiavone IV, but the others were not answered and went to voice mail.
“None of the six calls recorded were preceded by the customary recording warning stating, among other things, the ‘the telephone call was being recorded, except for privileged communications between attorney and client,’” the motion states.
A detective in the case did not listen to the calls in question because he realized right away they were placed to an attorney, according to Dwyer.
The Sergeant listening to the recording “made a prudent decision not to listen once he recognized the voice (of the attorney) Whether he had to do it or not, that is what he did,” Dwyer said.
There was also no investigation or action taken by detectives based on the calls, Dwyer said, noting again the detective stopped listening when he realized it was a call to an attorney.
A hearing for the motion has been scheduled for Friday.
Rebekah Kinner, 23, pleaded guilty last month to involuntary manslaughter, permitting child abuse and endangering children, counts that stem from not stopping the abuse and not seeking medical treatment for her daughter.
Young and Kinner were arrested Dec. 2 after the life squad and sheriff’s deputies were called to their Radabaugh Road home in Madison Twp. and found the toddler unresponsive and not breathing.
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