By Chris Haxel via the Kansas News Service
A federal judge is holding the U.S. Attorney's Office in Kansas in contempt in connection with a burgeoning scandal involving recordings of confidential conversations between criminal defendants and their attorneys at a federal detention center in Leavenworth, Kansas.
More than 100 people charged with or convicted of federal crimes could have their cases dropped or prison sentences reduced based on their claims of prosecutorial misconduct and violations of the attorney-client privilege.
In a 188-page ruling issued Tuesday, U.S. District Judge Julie Robinson wrote that the U.S. Attorney's Office disobeyed her previous orders to preserve documents and recordings as part of an investigation into the recordings.
"The elements necessary for a finding of contempt are clearly met," Robinson concluded. "The (U.S. Attorney's Office) had knowledge of the... orders yet disobeyed them."
The detention center is run by CoreCivic (formerly Corrections Corporation of America), one of the country's largest private prison companies. Defense attorneys and the Federal Public Defender's Office have alleged CoreCivic made video and audio recordings — which they say should have been protected by the Sixth Amendment — available to federal prosecutors.
The federal government has tried to pin the blame on two “rogue” prosecutors, Robinson wrote. But she says there’s evidence the U.S. Attorney’s Office had a “systematic practice of purposeful collection, retention and exploitation of calls” made between detainees and their attorneys.
The U.S. Attorney's Office at first denied it had accessed any of the recordings. Later it said prosecutors had only accessed some. And throughout the proceedings, the office has denied it ever violated the Sixth Amendment.
A spokesman for the U.S. Attorney’s Office did not immediately wish to comment on the ruling.
As punishment for the contempt finding, the U.S. Department of Justice will be forced to pay costs incurred by the office of Federal Public Defender Melody Brannon while litigating the case over the past three years. Those costs have yet to be determined. Brannon declined to comment for this story.
Robinson, herself a former prosecutor in the troubled U.S. Attorney's Office, also agreed to hear petitions for a writ of habeas corpus filed by the 110 — and counting — prisoners who claim their Sixth Amendment rights were violated.
Robinson’s ruling was issued in a criminal case that stems from a 2016 indictment as part of an investigation into alleged drug and contraband trafficking at the Leavenworth Detention Center.
Six people were initially indicted, but prosecutors have said they suspect more than 150 people inside and outside the facility were involved.
As part of their investigation, prosecutors issued a grand jury subpoena to obtain voluminous recordings from more than 100 video cameras inside the facility. They also obtained more than 48,000 phone calls made by prisoners.
While a more targeted request may have been legitimate, the judge said, prosecutors knew that they would be given recordings from cameras in five out of the facility’s nine rooms designated for attorney-client meetings.
And while the U.S. Attorney’s Office has said it only received attorney-client phone calls because they were “commingled” with other calls, the judge again said prosecutors should have known some of the calls would involve attorneys, and the government did not take steps to protect them.
Robinson estimated more than 700 attorney-client visits were recorded inside the facility. The videos do not include audio of the meetings, but Robinson wrote that the recordings can still be valuable to prosecutors.
For example, in one specific case, Robinson wrote that prosecutors “valued knowing whether there was a document exchange between” between a client and his attorney.
Other information, such as knowing whether a defendant is angry, talking to their attorney through an interpreter, or talking to their attorney at all, could be valuable clues for prosecutors engaged in plea negotiations or pre-trial strategy, the judge noted.
The government has also claimed the inmates should have known their calls were being recorded, but Robinson rejected that claim.
The phones, operated by a third party for CoreCivic, included a warning at the start of every phone call that calls may be recorded or monitored.
The company had a “privatization” process whereby attorneys could file paperwork to have phone calls made to them excluded from recordings.
But CoreCivic “misled” detainees about the process, the judge said, and the company sometimes recorded attorney-client phone calls even after attorneys had completed the process to privatize their phone calls.
“Detainees and defense attorneys were provided with incorrect, misleading, and inconsistent information about how to accomplish a confidential phone call at (the facility),” Robinson wrote. “Scores of defense counsel who testified or submitted affidavits in this case stated that they were unaware that their conversations… were being recorded.”
In total, more than 1,000 phone calls between public defenders and their clients were recorded.
The Federal Public Defender’s Office had asked that more than 100 defendants whose attorney-client communications were breached be dismissed. Alternatively, the office asked for a 50% reduction in sentences for all affected clients.
Robinson, however, wrote that she “reluctantly agrees” with the government’s claim that she shouldn’t make a blanket ruling on Sixth Amendment violations that covers every case.
Instead, the judge plans to “triage” the cases.
She will consolidate them for the purposes of discovery, so the Federal Public Defender’s Office can seek more documents and records from prosecutors. Then Robinson will issue rulings on a case-by-case basis.
At least one person has already been released from prison in connection with recordings at the Leavenworth facility. Michelle Reulet, of Montgomery, Texas, was freed last year after being sentenced in 2017 to five years in prison for mail fraud.
Former Kansas Solicitor General Stephen McAllister, who was appointed to head the office in January 2018, previously indicated he was willing to work out an agreement to reduce the sentences of inmates whose communications with their attorneys were recorded. Two months later, however, McAllister’s boss at the Justice Department, then-Deputy Attorney General Rod Rosenstein, nixed the proposal, saying that blanket reductions of inmates’ sentences were out of the question.
This story was updated at 1:14 pm on August 14.