"First reaction is this can't be happening. This is illegal," said Brendon Woods, Alameda County Public Defender.
Woods says the body camera footage from a sheriff's sergeant shocked him. Back in March, the sergeant admits to recording an in-custody juvenile while he was with his attorney. The case involved a 15-year-old attempted robbery suspect who was at the Eden Township Substation for questioning. His public defender was there to represent him.
The sergeant's body-worn camera captures him talking about recording the conversation.
VIDEO: Body camera video shows Alameda Co. Sheriff's Office may have illegally recorded confidential conversations
"We've had these recordings. We have not yet listened to any of the recordings with what they said to an attorney," says Sgt. James Russell in the body cam footage.
"There's a system of trust there and that cannot be violated. Furthermore, it's a felony for someone to record that conversation, that is against the law," said Woods.
The recorded attorney-client conversation, as well as the body camera footage, were turned over to the District Attorney's Office as deputies worked the attempted robbery case. Once prosecutors turned evidence over to the Public Defender's Office, an attorney there discovered the incriminating tapes.
In the body camera video, Sgt. Russell speaks to Eden Township Substation Lieutenant Timothy Schellenburg. The lieutenant can be heard questioning if the recorded conversation is protected attorney client privilege.
"How is that not privileged information?" asks Lt. Schellenburg. "Well it is, but it just like doesn't get admissible," responds Sgt. Russell.
"He says it's inadmissible. He knows it's not OK also," notes Woods.
District Attorney Nancy O'Malley agrees. The Public Defender's Office alerted her of the incident when they discovered it.
"When I heard about it, the first thing out of my mouth was dismiss that case immediately and open an investigation," said O'Malley.
Alameda Co District Attorney @NancyOMalley on deputy recordings of attorney/client convos: “First thing out of my mouth was dismiss that case immediately and open an investigation.” Expects criminal case to conclude soon. Dep could face felony. #abc7now— Katie Utehs (@KatieUtehs) August 21, 2018
The attempted robbery case was dropped because it was essentially tainted. Now the DA's office is combing through juvenile cases dating back to January to see if it's happened elsewhere. DA O'Malley expects her criminal investigation to be concluded in the coming weeks. While she wouldn't comment on any specifics of the investigation, people involved could face felony charges.
Meanwhile, the sheriff's office is looking at its own practices.
"Why the recorder and how the recorder was left on is part of our internal investigation," said Sgt. Ray Kelly, Alameda County Sheriff's Office spokesperson.
Sheriff's deputies are being retrained and a new attorney client room is being designed at the substation, free of recording devices.
"You will not see this happen again at the Alameda County Sheriff's Office. I guarantee it," said Sgt. Kelly.
There's a hearing on Friday where the Public Defender is asking a judge to make sure the sheriff's office is protecting all attorney-client privileged conversations. The DA says there's been no evidence of this happening in any adult cases.