A state investigation has found that the Nashville District Attorney’s Office secretly recorded criminal defense attorneys, office employees and visitors to the DA’s office.

Former members of District Attorney Glenn Funk’s staff told investigators that it was common practice to record criminal defense attorneys without their knowledge and turn over the details to staff members handling the criminal case.

“These attorneys discussed privileged information, including statements made by their clients, along with defense strategies,” the comptroller said.

From 2020 to 2021, District Attorney Glenn Funk’s office used government funds to install a surveillance system throughout the building, according to a joint report from the Tennessee Comptroller’s Office and the Tennessee Bureau of Investigation.

The report noted that the practice violates attorney-client privilege, and encroaches on Nashvillians’ fifth amendment rights against self-incrimination. Tennessee’s rules require a lawyer to “terminate” information they may have accidentally received regarding another lawyer’s client and notify the client or their attorney. Defense attorneys told investigators that they were never told they were being recorded.

Tennessee Attorney General Jonathan Skrmetti will not be prosecuting Funk or his office, according to a letter obtained by WPLN News.

“Following careful review of the evidence, it is my opinion that the facts and law do not provide sufficient basis for a successful criminal prosecution,” Skrmetti wrote.

In the same letter, Skrmetti admonished Funk for the actions of his office.

“I am particularly troubled by the audio recording functionality in places where defense attorneys converse with their clients, especially in the Crimes Against Children room. This practice could under certain circumstances implicate a defendant’s privilege or Brady rights,” Skrmetti wrote, ending by saying he had no evidence the recordings were used improperly.

In a statement to WPLN News, Metro Chief Public Defender Martesha Moore said that the AG’s decision does not resolve issues exposed by the report.

“The Comptroller’s Report validates the fears that many of our clients have long harbored about the criminal legal system: that it is inherently unfair and that they are, in many cases, powerless to challenge its most insidious practices,” Moore said. “The practices revealed in this report further erode any confidence our community may have in the protections of the presumption of innocence, the constitutional right to a fair trial and a zealous defense.”

Moore is requesting that the District Attorney’s Office disclose all cases, both pending and closed, in which this surveillance occurred, “as well as the identities of the prosecutors involved in this egregious breach of confidentiality, so that we may seek remedies, including recusals, where appropriate.”

Funk has maintained that there is no expectation of privacy within the office.

“They’re inside of the District Attorney’s Office. They’re in an area inside of the District Attorney’s Office and you think they have an expectation of privacy?” Funk said to investigators. “You don’t have any expectation of privacy in the District Attorney’s Office. Nobody would have an expectation of privacy anywhere in the District Attorney’s Office.”

Criminal defense attorney David Raybin agreed; he told WPLN News that he doesn’t expect privacy in the DA’s office.

The investigation also found that Funk used government resources to support his re-election campaign and surveilled an employee whose family supported a different candidate for the DA position.

A former assistant district attorney was reassigned to a grant-funded position and surveilled without her knowledge after a family member made a social media post supporting one of Funk’s rivals for his 2022 re-election campaign. Messages obtained by the comptroller’s office show that Funk had been considering firing her for the post.

“I think if you fire her now (redacted) will use that against you,” a redacted individual told Funk in a text message. “Keep her on a tight, tight leash until May. Then fire her if you want to haha … I don’t want you to seem Trumpish to people who don’t know you and have them think you fired her just because someone disagrees with you.”

Funk responded, “That’s mainly what I think. But others are recommending the more serious response.”

The former assistant district attorney in question told investigators that in a meeting with Funk, she felt pressured into contributing $500 to his campaign. The report records her recollection of the meeting like this:

“Everyone in this office knows about that post. (the former ADA interpreted this as he was implying that she was lying about not having known about it). I would never ask you to get involved in politics, but I think the only way you could make this any better is if you donated a significant amount of time or money, but I don’t ask anyone to do that. (Funk) then ends by saying we may need to check in next week about your future at the office,” the report said.

Former employees told investigators that Funk and her supervisor watched the surveillance footage of her, and instructed cameras be pointed directly at her office. Funk said this was because of “an alleged mismanagement of the former ADA’s working hours.”

The employee in question resigned from her position around July 2022.

During business hours, staff members participated in campaign events for the DA and submitted PTO forms to account for that time, a system created after Funk’s office received questions about how employees were spending their time, the report found.

While AG Skrmetti opted not to prosecute Funk, there is a chance he could face formal disciplinary charges if Tennessee’s Board of Professional Responsibility finds him at fault. A spokesperson for the board said that their investigations are confidential “unless or until public discipline is imposed.”

In a statement to WPLN News, a spokesperson for the DA’s office said, “This matter is now at an end.  As General Funk has always stated, neither he nor his office has committed any crimes or broken any law. This office will continue our mission to support victims, hold offenders accountable, and keep Nashville Safe.”

Mayor Freddie O’Connell’s office declined to comment, saying, “We have nothing to add to this.”

Update: This story has been updated to include a statement from Metro Chief Public Defender Martesha Moore, attorney David Raybin and Mayor Freddie O’Connell’s office.