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Federal Government Upends Agreement On Leavenworth Attorney-Client Videotapings

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The U.S. Justice Department has scuttled an agreement to address more than 100 cases in which inmates at a Leavenworth pretrial facility were videotaped while meeting with their attorneys.

In a letter last week to the special master appointed to investigate the tapings, Deputy Attorney General Rod Rosenstein wrote that the Justice Department could not approve blanket reductions of defendants’ sentences “absent evidence of particularized harm.”

The letter infuriated the judge overseeing the case, who, at an extraordinary 75-minute hearing on Wednesday, said she would resume an evidentiary hearing that she'd postponed in May on the tapings. 

The U.S. Attorney for Kansas, Stephen McAllister, had spent more than two months negotiating an agreement with the Federal Public Defender calling for the affected defendants’ sentences to be reduced by 35 percent to 40 percent.

In clearly exasperated tones, U.S. District Judge Julie Robinson told the Justice Department's representative, New York prosecutor Steven D. Clymer, that he’d never previously signaled that McAllister did not have authority to negotiate or resolve the matter.

We have no interest whatsoever in engaging in direct negotiations with (the Justice Department) because it’s a waste of time. - Melody Brannon, Federal Public Defender’s office

The issues were “well on the way to settlement or partial settlement,” Robinson said. “Then we got this letter.”

At the hearing, the head of the Federal Public Defender’s office, Melody Brannon, ruled out further negotiations with the Justice Department, accusing officials in Washington of acting in bad faith.

“We have no interest whatsoever in engaging in direct negotiations with (the Justice Department) because it’s a waste of time,” Brannon said.

She said her office would now seek to overturn the convictions of the defendants rather just seek reductions of their sentence.

Making little attempt to conceal her anger that the laboriously negotiated agreement had been scuttled, Robinson suggested that Deputy Attorney General Rosenstein had been misinformed about the extent of the constitutional violations that had occurred in the District of Kansas.

Brannon told Robinson that her office had identified 102 cases of videotaped attorney-client meetings that were turned over to the U.S. Attorney’s office. And she said numerous other attorney-client meetings by phone were also improperly recorded and obtained by prosecutors.

Core Civic, the operator of the Leavenworth facility, “was recording (Federal Public Defender) calls for a two-year period when they shouldn’t have been,” Brannon told Robinson.

The disclosure nearly two years ago that attorney-client calls had been recorded at Leavenworth triggered outrage among defense attorneys, who said the tapings violated bedrock principles of due process and the right to counsel under the Constitution’s Sixth Amendment.

McAllister’s willingness to try to settle the volatile issue represented a sharp turnaround. In October, Clymer, who was appointed by the Justice Department to act as a liaison with Cohen, the special master, announced that the U.S. Attorney’s office would no longer cooperate with Cohen.

Robinson appointed Cohen to investigate the recordings at Leavenworth. She later expanded the scope of his investigation to examine the extent to which the U.S. Attorney’s office may have made use of them.

But Clymer, in a lengthy letter to Cohen cutting off further cooperation, said there was no evidence suggesting any Sixth Amendment violations had occurred.

The Federal Public Defender’s office then moved to have the U.S. Attorney’s office held in contempt. That led to the hearing in May at which Clymer instructed members of the U.S. Attorney’s office who had been subpoenaed by the public defender not to answer questions on the grounds they related to internal office deliberations.

Among the issues left unresolved was how a hard drive in the U.S. Attorney’s office that Robinson had ordered preserved was wiped clean and whether that was done deliberately to destroy evidence.  

All of that occurred before McAllister, a former dean of the University of Kansas law school and a former Kansas solicitor general, was appointed the U.S. Attorney for Kansas eight months ago. McAllister was largely seen as trying to address the explosive issues raised by the tapings, and Rosenstein’s letter seems to have undercut those efforts.

At the hearing Wednesday, Robinson said she was struggling to understand what authority, if any, McAllister now has to negotiate with the public defender. The matter is particularly urgent because scores of defendants have filed motions to have their sentences set aside because of the attorney-client recordings.

“Reading Mr. Rosenstein’s letter,” Robinson said, “I have no clue what (the Department of Justice) has taken authority over.”

Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies

Dan Margolies has been a reporter for the Kansas City Business Journal, The Kansas City Star, and KCUR Public Radio. He retired as a reporter in December 2022 after a 37-year journalism career.
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