A judge ruled on Tuesday that prosecutors produced sufficient evidence to have an Alameda County sheriff's sergeant stand trial on four felony eavesdropping counts for allegedly making illegal and secret recordings of juvenile suspects last year.
Sgt. James Russell, 45, who is on paid suspension from his job and is free on his own recognizance, is charged for his alleged actions at an interview room at the sheriff's Eden Township substation in San Leandro on March 15, 2018.
Russell is accused of secretly recording four juvenile robbery suspects while Deputy Public Defender John Plaine provided legal advice about whether they should provide statements to sheriff's investigators in their case.
The Alameda County District Attorney's Office alleges that such interviews are privileged communications and recording them is a crime.
Plaine testified on Monday that he didn't give consent to Russell or any other sheriff's officials to record his conversations with the four juveniles.
"I had no reason to believe they would be recorded," Plaine said, and he told the juveniles that the conversations were confidential.
However, under cross-examination by Russell's attorney Judith Odbert, Plaine admitted, "We didn't talk about the facts of the case" in his conversations with the teens.
At the end of a preliminary hearing for Russell that spanned parts of two days, Odbert asked Alameda County Superior Court Judge Morris Jacobson on Tuesday to reduce the four counts against Russell from felonies to misdemeanors.
Odbert said Russell wasn't present when the recording began and had no intent of using the conversations between Plaine and the juveniles as a way of building a case against them.
The defense attorney said Russell recorded the conversations because the sheriff's office, to ensure that juveniles were safe, had a policy of continuously visually and audibly monitoring juveniles while they are in interview rooms.
In a court filing, Odbert said the policy conflicted with a new state law that took effect on Jan. 1, 2018, that requires that juveniles age 15 or younger be able to consult with legal counsel before they are interrogated but alleged the sheriff's office never trained its personnel about complying with it.
But Jacobson said Russell should stand trial on four felony counts of eavesdropping because there's sufficient evidence at the preliminary hearing level that he intentionally recorded the juveniles without their consent.
However, Jacobson added, "If I were the trier of fact at a jury trial (where there's a higher standard of proof), I don't know what I would do."
Jacobson said the defense's argument that Russell was just following the sheriff's policy and didn't plan to use the juveniles' statements against them "is not necessarily a legal defense" but could provide an explanation for Russell's actions.
Jacobson also said the charges against Russell aren't a reflection of his character, saying that Russell "has earned a remarkable reputation" in his 20 years with the sheriff's office and "is held in high regard."