Vastly expanding the scope of an investigation of video and audio taping of attorney-client meetings and phone calls at the detention center in Leavenworth, a federal judge now wants to know whether the government obtained and used such recordings.
In a 48-page order this morning, U.S. District Judge Julie Robinson directed an outside expert she appointed to determine if the government “intentionally and purposefully procured and obtained recordings of attorney-client communications, and whether intentionally, or not, the government listened, viewed and/or used such recordings.”
“There are grave concerns about government intrusion into attorney-client communications,” Robinson wrote, referring not just to the criminal case that gave rise to the discovery of the tapings but to cases involving other inmates at the pretrial detention facility in Leavenworth as well.
The disclosures first surfaced last summer in a massive criminal case alleging that as many as 95 people inside and outside the Leavenworth center conspired to distribute and smuggle drugs and other contraband within its walls.
In a brief statement, U.S. Attorney Tom Beall said, “Our office has been cooperating with the special master all along – and we intend to continue doing so. That said, while this matter is pending before the court, it would be inappropriate for us to make further comment.”
The Federal Public Defender’s office in Kansas, which first brought the tapings to Robinson’s attention last August, said that Robinson’s order “speaks for itself.”
The discovery that the private operator of the Leavenworth prison, then called Corrections Corporation of America and since rebranded as CoreCivic, had authorized recordings of privileged attorney-client meetings and phone calls and possibly turned them over to federal prosecutors created an uproar among criminal defense attorneys and raised questions about whether CCA has recorded attorney-client meetings at its other facilities.
The company manages dozens of prisons and jails for federal, state and local governments nationwide.
In October, Robinson appointed Cleveland lawyer David R. Cohen as a special master, or outside expert, to look into the matter. Cohen has since conducted numerous interviews and filed reports with Robinson detailing what he found. In one report, he identified 229 recorded calls made at the Leavenworth facility to known attorney phone numbers.
But with her order today, Robinson has greatly extended the scope of Cohen’s investigation, directing him to look into the conduct of the U.S. Attorney’s Office in Kansas and various investigative agencies that may have had access to the recordings.
According to court filings by the federal public defender, those agencies may include the U.S. Probation Office, the Johnson County Sheriff’s Office, the Kansas Bureau of Investigation, the U.S. Secret Service, the U.S. Marshals Service and the criminal investigations division of the IRS.
In a ruling that at times blistered the government for its lack of transparency and candor, Robinson charged Cohen to investigate whether the government has listened to audio recordings of attorney-client phone calls and viewed any video recordings of attorney-client meetings.
The government has contended that the phone calls were not privileged because when inmates placed calls on the pay phones at Leavenworth, a prerecorded message notified them that all calls are recorded or monitored.
Robinson, however, said there were “serious questions” about whether inmates knowingly and intelligently waived their attorney-client privilege. Although CoreCivic says attorneys can designate their phone numbers as private and block their calls, many attorneys have complained they were never made aware of the procedure.
Over a four-year period from 2012 to 2016, Robinson noted, the government obtained audio recordings of 182,084 inmate outgoing calls, of which more than 700 were from inmates to their attorneys. And of those more than 700 calls, 188 were to attorney numbers that had been designated “private.”
“The evidence suggests that a significant number of attorney-client calls have been recorded, and given the government’s practice of obtaining inmates’ phone calls in this, and in other investigations, there are serious concerns about whether the government has at least inadvertently, if not intentionally, obtained attorney-client phone calls in this investigation and in other cases in which defendants have moved for relief,” Robinson wrote.
The government has denied listening to any privileged phone calls, all of which Robinson has impounded, but Robinson said the government’s conduct “has encouraged such suspicion.”
“Before the Special Master was appointed, the government was not forthcoming about how it procured all of the audio recordings in its possession, for some of the recordings were subpoenaed, some were not,” she wrote. “And, the government’s litigating posture, as well as its past practices in obtaining jail calls, has fueled other defendants’ suspicion that the government has listened to their audio recordings as well.”
Robinson also directed Cohen to look into the government’s possible use of video recordings of attorney-client meetings. She said there was evidence the government “has demonstrated a lack of transparency to the Court and counsel about its possession, knowledge and use of video recordings.”
She cited one instance where, after she ordered the government to preserve the hard drives for computers used in the U.S. Attorney’s office, one of them had been wiped clean. That hard drive included a video recording of a criminal defense attorney whom prosecutors had sought to remove from a case.
Robinson also addressed the culture of distrust that has arisen between the defense bar and the U.S. Attorney’s Office in Kansas. Cohen, in his last report, referred to the attorney-client recordings as a “spark (that) lit a flame,” and Robinson said “the defense bar’s negative perceptions are not unfounded with respect to the practices of some, and probably a minority, of prosecutors.”
Robinson said that the U.S. Attorney’s Office may need to go beyond the bounds of any order she ultimately issues.
No matter the outcome of the investigation, she wrote, “the Court has in mind certain steps it will take that will hopefully encourage a cultural change, and hopefully restore, particularly in the Kansas City division, an environment of mutually earned respect, understanding, trust and even appreciation, of the critical and admirable roles that defense counsel and prosecutors both play in our exemplary and well-respected system of criminal justice.”
Dan Margolies is KCUR’s health editor. You can reach him on Twitter @DanMargolies.