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    • Nashville prosecutors made secret recordings, auditor says
    Duluth

    Nashville prosecutors made secret recordings, auditor says

    Eira Gwyneth Posted on

    Nashville District Attorney Glenn Funk’s office said in a statement that the case was considered closed, but the attorney general said ethical concerns remained.

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    This story has been updated to include new information about the investigation.

    Davidson County District Attorney Glenn Funk’s office secretly recorded defense attorneys and other visitors to the prosecutor’s office, according to a scathing report from the Tennessee State Auditor General released Wednesday morning.

    According to the report, the prosecution recorded audio recordings of defense attorneys without their knowledge in a room that defense attorneys were required to use to review evidence in pending criminal cases.

    The investigative report, prepared in cooperation with the Tennessee Bureau of Investigation, states that former prosecutors’ office employees told investigators it was “standard practice” to turn on the audio and video recording devices before defense attorneys arrived and to pull the recordings after they left to provide them to prosecutors or office staff handling the criminal case.

    “Investigators spoke with numerous defense attorneys, some of whom told investigators that they had no knowledge of it and that no office employee had ever informed them that the examination room was equipped with a microphone that could record their conversations or that they would be recorded in the examination room during evidence gathering in a criminal case,” the report states. “Often, confidential information was discussed among themselves, including statements from their clients and defense strategies, and they said they would not have remained in the examination room if they had known that the room was equipped with a microphone.”

    The investigation suggests that this practice may have violated constitutional provisions and Tennessee state law, which requires at least one party to be aware of audio recordings of conversations.

    The auditor reported his findings to the Tennessee Attorney General’s Office and the Tennessee Board of Professional Responsibility.

    Funk’s office referred in a statement Wednesday to a letter from Attorney General Johnathan Skrmetti saying the attorney general would not file charges following his own investigation. Skrmetti said in the Wednesday letter that the evidence did not provide “a sufficient basis for a successful prosecution.”

    “We thank Attorney General Skrmetti for his prompt response to the auditor’s report,” Funk’s office said in a statement. “This matter is now closed. As General Funk has always stressed, neither he nor his office committed crimes or broke any laws. This office will continue its mission to support victims, hold perpetrators accountable and keep Nashville safe.”

    However, Skrmetti said in the letter that the closure of the investigation does not release the prosecutor from its ethical obligations. He was “particularly concerned” about audio recordings in places where defense lawyers talk to clients, especially in the room for crimes against children.

    “This practice could, under certain circumstances, impinge on a defendant’s privileges or Brady rights,” Skrmetti wrote. “Although we have no evidence that these records were reviewed or used for an improper purpose, you should consider whether you or your subordinates have an obligation to report or disclose past conduct related to this practice or other possible violations of your ethical obligations.”

    Report: Signs of audio recording found at “unknown location”

    Funk told investigators he had known about the practice of recording conversations with defense attorneys since at least the summer of 2022, the investigative report shows, and seemed to dismiss the assumption that in the prosecutor’s offices, every lawyer was “entitled to privacy.”

    “You’re in the prosecutor’s office, you’re in an area within the prosecutor’s office and you think you’re entitled to privacy? You’re not, you’re not, you have no right to privacy in the prosecutor’s office,” Funk told investigators, according to the report.

    The auditor found that the office had posted “numerous” signs alerting visitors to possible surveillance, but contained little evidence of possible audio recording. Investigators found only a single three-inch sticker at the bottom of a door, which would likely have been overlooked due to its “obscure placement,” according to the report.

    “The office surveillance system was used to audio and video record conversations of defense attorneys, office employees, other tenants and visitors without their knowledge or consent and without clear warning or adequate disclosure of this practice,” the report said.

    The investigation initially covered a period between 2020 and 2023, but was later extended to the period before 2020.

    Skrmetti notified Funk’s office in February 2023 that the state would investigate allegations of improper recording, which were first raised in a NewsChannel 5 report. Funk denied any wrongdoing at the time.

    “We have never made unauthorized audio or video recordings in areas where a person has a legitimate expectation of privacy,” Funk said in 2023. “We know what the law allows and what the law prohibits.”

    Funk is said to have monitored ADA for political issues

    In addition to recording defense attorneys, Funk is alleged to have pressured an assistant district attorney in his office after learning that an ADA family member was publicly supporting Funk’s political opponent in the 2022 election. The ADA has since left the office.

    Investigators found that Funk “directed office staff to monitor the former ADA’s offices without his knowledge,” assigned the ADA from a criminal court team, and later received a “questionable” campaign donation from the ADA.

    The former employee told investigators that Funk said, “The only way to improve the situation would be if you donated a significant amount of time or money, but I’m not asking anyone to do that.” He then suggested that the employee’s future at the office was in question.

    The ADA wrote Funk’s campaign a check for $500 after the meeting, but Funk told investigators he never cashed it.

    Investigators found that the ADA was under surveillance at Funk’s direction, including audio surveillance. Staff kept a detailed log of the ADA’s movements within the building, down to the second, and also listed details of what the staff member was wearing or carrying.

    According to investigators, Funk acknowledged ordering the surveillance, but said it was necessary “due to alleged mismanagement of the former ADA’s work time.”

    Legal experts comment

    Legal experts disagree on the question of whether the recordings violate constitutional rights.

    Longtime Nashville criminal defense attorney David Raybin said the recordings do not violate state wiretapping laws or constitutional rights because people have no legitimate expectation of privacy when discussing matters in a public building such as the district attorney’s office.

    “You are a law enforcement agency,” he said. “How can you believe you can expect privacy in a police officer’s office when you are not guaranteed it?”

    But Chris Slobogin, director of the criminal justice program at Vanderbilt Law School, said any recording would violate the Constitution if used as evidence in a trial.

    “It is a blatant violation of the Sixth Amendment and attorney-client privilege for a government official to secretly eavesdrop on a conversation between a lawyer and his client,” he said.

    Public defender calls for review of cases

    In a statement, Chief Public Defender Martesha Johnson Moore said her office was “deeply troubled” by the report’s revelations and would ask prosecutors to disclose all cases involving audio and video surveillance, as well as the identities of those involved, for possible legal recourse.

    “The auditor general’s report confirms the fears that many of our clients have long had about the criminal justice system: that it is inherently unfair and that in many cases they are powerless to challenge its most insidious practices,” she said.

    Although the attorney general has declined to file charges, Johnson Moore said the decision does not address serious ethical violations and a “flagrant breach of confidentiality.” Government resources should not be used in a way that undermines trust in the justice system, she said.

    “Anyone who has spent any significant amount of time in a criminal courtroom knows that prosecutors are among the most powerful actors in our criminal justice system,” she said. “The enormous discretion our community grants to prosecutors, whether elected or appointed, should mean that those prosecutors must conduct themselves in a way that honors the trust we place in them.”

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    Eira Gwyneth
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