A young lawyer accused of violating state rules of professional conduct has been accountable for her actions, placed herself on “self-probation” and made into “the face of this entire ordeal,” her attorney said.
Erin Tomasic is a former assistant U.S. attorney fired for her role in a scandal accusing her and her supervisor, Kim Flannigan, of listening in to phone calls and watching video recorded at a private pre-trial detention facility in Leavenworth. A disciplinary hearing for Tomasic and Flannigan began this week in Topeka.
The case outraged criminal defense attorneys and others, who say the U.S. Attorney’s office — and more largely, the U.S. Department of Justice — disregarded prosecutorial misconduct issues and even orders from a federal judge.
The massive case involved more than 100 defendants and millions in payouts. It was the subject of at least two investigations and consumed the federal criminal divisions in Kansas for years. One investigation found that more than 1,300 phone calls between public defenders and inmates awaiting trial were improperly recorded over a two-year period,
On Wednesday, during the first of a three-day hearing before the Kansas Board for Discipline of Attorneys, Tomasic’s attorney described her as a young lawyer in her first job as a practicing attorney when she was caught up in the scandal.
A tightly-coiled Tomasic fidgeted and wiped away tears as her attorney, Nathan Garrett, said she was a 20-something “once bright, ambitious, hopeful lawyer” who was “the youngest lawyer in every room she found herself in.”
Since the story surfaced in August 2016, Garrett said Tomasic has been vilified in the media for a tale whose “premise is flawed” because Tomasic has been honest and “accountable from the jump.”
“Erin Tomasic deserves to be here. She’s earned it, seven or eight years ago,” Garrett said.
Tomasic, who was fired in July 2017, is no longer registered as a lawyer in Kansas, and she and her young family — “crawled into a hole in Kentucky” — as she “self-exiled” and put herself on “self-probation,” Garrett said. She became “the face of this ordeal, the person who walked the plank,” Garrett said.
U.S. District Judge Julie Robinson, who in October 2016 appointed a special master to investigate the controversy, testified at the Wednesday hearing — a rare, if not unprecedented, move for a federal judge. Even before 2016, Robinson said she had “huge issues” with the U.S. Attorney’s office in Kansas City, Kansas, and convened a group of attorneys to work on issues about discovery practices and “aggressive stances.”
Robinson earlier found that the federal government tried to scapegoat two “rogue” prosecutors, Tomasic and Flannigan. The U.S. Attorney’s Office had a “systematic practice of purposeful collection, retention and exploitation of calls” made between detainees and their attorneys, Robinson found.
During Wednesday’s hearing, Robinson said most of her problems with the U.S. Attorney’s Office were at the management level, which did “virtually everything they could to thwart this investigation.” Tomasic cooperated with the special master’s investigation and “in many ways was very accountable to what she did,” Robinson said.
According to court documents, Tomasic knew about the surveillance even before April 12, 2016, when she issued a subpoena to private prison operator Corrections Corporation of America — now called CoreCivic — seeking all video footage or still images retained at Leavenworth dating to 2014.
Matt Vogelsberg, a disciplinary officer, said Tomasic "intentionally" listened to phone calls — even calling in a Spanish interpreter on one — then "knowingly made several false statements" about what she did.
Under questioning from Garrett, Robinson also said it appeared that Tomasic didn’t receive mentorship or support from the U.S. Attorney’s office.
The three attorneys appointed to a panel hearing the case will hear testimony through Friday, then issue a written ruling in a few months. They can make several findings, including no violation of the disciplinary rules through public censure, probation, license suspension or disbarment.
Though the attorneys on the panel didn’t give any indication of how they would rule, one of them, Jeffrey Chubb, said the case was “painful to read.”
"A light bulb moment"
Ironically, the scandal was revealed when Tomasic and Flannigan called a defense attorney, Jaquelyn Rokusek, into their Kansas City, Kansas, office to accuse her of unethical actions in a drug conspiracy case.
Rokusek, now a Kansas District Court judge based in Johnson County, testified Wednesday that Tomasic and Flannigan called her into their office and accused her of a conflict of interest, specifically improperly sharing information from one client's case to another's. They told her she “better consider withdrawing” from the case, Rokusek said.
“I took it as a threat,” Rokusek said. “I didn’t trust the office. I didn’t trust Erin.”
Then, as Tomasic and Flannigan told her that they had an agent reviewing surveillance video from the Leavenworth facility to prove her transgression, Rokusek was stunned to learn that her privileged meetings with clients were being recorded.
“I literally had a light bulb moment during the meeting," Rokusek said.
Rokusek called the U.S. Federal Public Defender, Melody Brannon, to report the video recordings of attorney-client meetings. Rokusek then asked to see the video, and ultimately confirmed that it existed, triggering the controversy.
Asked what she thought of the U.S. Attorney’s office, where Rokusek once worked, Rokusek said she thought many there were “overly aggressive” and difficult to work with. She singled out Terra Morehead, a now-infamous former prosecutor disbarred last year.
Flannigan, who retired after a 36-year career, no longer practices law, said her attorney, John Ambrosio. Flannigan is accused of failing to properly supervise Tomasic, who she knew was violating professional rules of conduct.
"(Flannigan) does not want to go out this way, hence why she didn't just fold her tent and live on her pension," Ambrosio said.
Ambrosio argued that Flannigan was not responsible for supervising Tomasic, and that she had other supervisors and mentors. Nor is Flannigan responsible for how Rokusek interpreted the first meeting where the two accused her of a conflict, Ambrosio said.
"Nobody in their wildest dreams thought this would be blown out of proportion," Ambrosio said.
