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Judge Holds U.S. Attorney's Office in Kansas in Contempt in Case that Could Upend Hundreds of Convictions

Correction: Prison Recordings story

WICHITA, Kan. (AP) — In a story originally published August 14, 2019, about an investigation into the use by prosecutors of prison recordings, The Associated Press reported erroneously the name of the special master appointed by the judge. The special master was David Cohen, not Steve Clymer who defended the U.S. attorney's office. A corrected version of the story is below:

Ruling Holds U.S. Attorney's Office in Kansas in Contempt, Ruling Could Upend Hundreds of Convictions
By Roxana Hegeman / Associated Press

WICHITA, Kan. (AP) — Prosecutors in the U.S. attorney's office in Kansas City, Kansas, improperly listened to recorded communications between inmates and their defense attorneys and willfully violated court orders during an independent investigation of the systemic practice, a judge said in a ruling that could upend hundreds of federal convictions and sentences. W.S. District Judge Julie Robinson in a 188-page decision handed down late Tuesday also held the U.S. attorney's office in Kansas in contempt of court, saying she would impose monetary sanctions against the government as punishment for violating orders to preserve evidence and turn over documents to the court-appointed special master investigating prosecutors' use of video and phone recordings at the privately run Corrections Corporation of America detention center in Leavenworth. Her ruling also cited the "dysfunction and strife" in the U.S. attorney's office in Kansas City, Kansas, detailing a culture in which prosecutors recorded their conversations with others from the office and kept files and notes at home. Several managers had repeatedly sought to address abusive prosecutorial practices in that office. "The record illustrates how deeply the Kansas City prosecutors distrusted current and past management, to the point of insubordination," the judge wrote, noting prosecutors either failed to tell managers that they had the recordings or failed to follow management's advice, such as not listening to the calls.

A spokesman for U.S. Attorney Stephen McAllister said their office is evaluating the court's findings and conclusions of law, and is not able to comment further. Federal Public Defender Melody Brannon declined to comment. Former U.S. Attorney Barry Grissom said in an emailed statement that he hopes the Justice Department will work with the court to resolve this as quickly as possible so they can get back to keeping Kansas residents safe without distractions. Grissom, a Democrat, is running for the U.S. Senate seat in Kansas. "I remain proud of the many dedicated prosecutors and law enforcement officials I came to know during my time as U.S. attorney, but I have been outraged to learn that a select few misled many and took actions on their own to let us all down," Grissom said.

The judge set up what she termed a "roadmap" to review petitions from defendants claiming violations of their Sixth Amendment rights to counsel. At least 110 such petitions have been filed to date, and the federal public defender has told the court that more are coming. The special master's investigation found that every time federal prosecutors requested recorded detainee phone calls there was a greater than one-in-four chance of also scooping up attorney-client conversations. An analysis cited in the ruling estimated that between 2010 and 2017, the U.S. attorney's office accessed 1,429 attorney-client phone calls. Robinson found that prosecutors also improperly obtained soundless video recordings of attorney-client meetings at the prison.

The government also generally did not disclose to defense that it had obtained such recordings and in some cases extensively used them in their prosecution. The routine practice of recording such calls and meetings was discovered more than three years ago by the federal public defender's office during an investigation into possible contraband smuggling at the center involving inmates and guards. David Cohen, an Ohio attorney, was then appointed as special master by Robinson to look into whether prosecutors had violated attorney-client privilege in obtaining the recordings.

Acting U.S. Attorney Tom Beall was in charge at the time the court's investigation into the recordings began, although some of the conduct cited in the contempt finding also occurred during McAllister's tenure as the current U.S. attorney for Kansas. Robinson said the U.S. attorney's office repeatedly violated the court's order to preserve materials for its investigation and failed to cooperate by delaying and avoiding turning over documents and making witnesses available. The court said it will award fees and costs borne by the federal public defender's office as its sanction for the contempt, and directed Brannon to submit an application for them by September 24.

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