Did Attorneys Listen? That's The Question At Hearing On Leavenworth Tapings | KCUR

Did Attorneys Listen? That's The Question At Hearing On Leavenworth Tapings

Oct 1, 2018

Leavenworth Detention Center sits about 35 miles northwest of Kansas City, Missouri, just off the town’s main drag – a nondescript stretch of fast-food shops, strip shopping malls and mom-and-pop businesses.

The prison is a sprawling complex of squat white buildings ringed by chain-link fencing topped by razor wire. People charged with federal crimes who can’t make bail are held here.

The prison can hold more than 1,100 detainees, male and female alike. Lawyers regularly meet with them there to review their cases. 

Those conversations are supposed to be private. But ever since the disclosure two years ago that the owner and operator of the prison, CoreCivic, had video- and audio-taped attorney-client meetings, the prison has been the center of a raging controversy. 

And this week, in what's shaping up as a blockbuster court hearing, evidence may be produced about whether and to what extent federal prosecutors viewed or listened in on those recordings. 

In a move with little precedent, the Federal Public Defender has subpoenaed more than a dozen prosecutors and employees of the U.S. Attorney's Office to testify about whether they accessed any of the recordings. Melody Brannon, head of the Federal Public Defender Office in Kansas, says without the assurance of confidentiality, her office can't do its job.  

“It’s critical to the system that an attorney and client can speak in confidence so that we can best represent our clients, so that they can confide in us and let us know the essential facts and concerns that they have,” Brannon says. “That enables us to make the right decisions and how to proceed in the case. If we don't have that confidentiality, it cripples the job of the defense attorney in representing our clients.”

So serious is the breach of confidentiality seen that scores of inmates who say their communications with their lawyers were taped are seeking to have their convictions overturned.

Brannon has been leading the charge to get to the bottom of what happened. 

“We requested (CoreCivic) to not record calls to our (phone) numbers,” she says. “So anytime someone inside was calling, those were not supposed to be recorded. And yet we found for a two-year period that those calls were recorded.”

U.S. District Judge Julie Robinson appointed a special master to investigate not just the extent of the recordings but whether any of them had been turned over to federal prosecutors. The scope of the investigation by the special master, Cleveland attorney David R. Cohen, was limited to the case in which the recordings first came to light. But Cohen quickly discovered that hundreds of attorney-client meetings at Leavenworth had been videotaped.

“The idea that the United States Attorney's office had access to attorney-defense counsel meeting with their clients was a big deal,” Cohen, the special master, says. “And so I was appointed by the judge to determine really what was going on and the extent to which that might have occurred.”

It’s not clear at this point to what extent the U.S. Attorney’s Office may have accessed the video recordings. One of the reasons that remains murky is that a hard drive in the U.S. Attorney's Office containing the recordings was mysteriously wiped clean – even after the judge had ordered the office to preserve it as evidence.

Since Cohen's appointment, separate class action lawsuits brought by lawyers and detainees claim to have uncovered evidence that more than 1,300 phone calls between public defenders and inmates at CCA were improperly recorded over a two-year period. Beyond that, they claim, nearly 19,000 inmate phone calls to 567 attorneys on a list compiled by Cohen had also been recorded over a period of several years.

Leavenworth Detention Center is owned and operated by CoreCivic, the biggest private operator of prisons and detention centers in the United States.
Credit Rebekah Hange / KCUR 89.3

The U.S. Attorney’s Office initially cooperated with Cohen’s investigation. But last fall, it abruptly stopped cooperating – which prompted Brannon to file a motion to hold it in contempt.

A hearing on the motion got underway in May, but it was recessed after the newly appointed U.S. Attorney, former Kansas Solicitor General Stephen McAllister, 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, Deputy Attorney General Rod Rosenstein, nixed the proposal, saying that blanket reductions of inmates’ sentences were out of the question.

As a result, the hearing is set to resume this week. In a move with little precedent, the Federal Public Defender has subpoenaed more than a dozen prosecutors to testify about whether they accessed any of the recordings.

Pam Metzger, a law professor at Southern Methodist University, says the possibility that prosecutors may have accessed the recordings 'would “would be jaw- droppingly, dumbfoundingly shocking.'
Credit Southern Methodist University

Pam Metzger, director of the Deason Criminal Justice Reform Center at Southern Methodist University and an expert on the Sixth Amendment, says the mere possibility that prosecutors obtained attorney-client recordings “would be jaw-droppingly, dumbfoundingly shocking.”

“It would demonstrate an absolute failure not simply of the adversary system, but of due process,” she says. “It would demonstrate the most profoundly unethical disregard not only for the rule of law but for the United States Constitution.”

CoreCivic says it does not comment on pending litigation. But in court filings, it says detainees knew their calls might be recorded – even though attorney-client phone calls were supposed to be off limits. And that still doesn’t explain how or why the recordings may have been turned over to prosecutors.

“The victims here are poor people charged with crimes who were confronted by the power of the state, who were locked in cells and who were dependent on other people – lawyers – to provide them with communication,” says Metzger, who has consulted on the case. “And if they are not entitled to trust that their lawyers are telling them the truth when their lawyers say 'It's okay, we can talk,' then how in the world can they expect any kind of justice in this system?”

It’s not clear what would happen if Judge Robinson finds federal prosecutors in contempt. But Metzger thinks Rosenstein’s decision to blow up the proposed agreement may be even more problematic for prosecutors.

She points out that 95 percent of all federal criminal cases are resolved through guilty pleas. But if prosecutors don’t have the authority to reach such agreements, she says, then it calls into question much of the basis on which the criminal justice system rests.

“I don't know how any federal district court can ever expect to do business in an honest, predictable and fair manner with the lawyers it sees every day – and that’s without regard to whether the lawyers in any particular case misbehaved,” she says. “If  they in fact do not have the authority they believe they have to enter into these plea agreements, then the whole system is thrown into chaos.” 

The recording scandal has already thrown the system into chaos. The Federal Public Defender has filed motions on behalf of 60 inmates whose calls with their attorneys were recorded, seeking to have their convictions overturned outright. And it's planning to file at least 60 more motions in the weeks to come, says Brannon, of the Federal Public Defender's Office.

“We've asked for an individual evidentiary hearing in each,” she says. “We have asked for the actual conviction to be overturned and the government barred from retrying the case. Alternatively, we've asked for reductions in their sentences.”

Cohen, who has been appointed a special master in nearly 30 cases over the last 15 years, says he’s never been involved in a case quite like this one.

At bottom, he says, the case is about trust between the defense bar and prosecutors, which – at least in Kansas – has taken a huge hit in the wake of the recordings scandal.

“It’s something we’re working very hard to reinstate,” he says.

This week's hearing could well determine if that happens.

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