Federal prosecutors in Kansas have agreed to address issues arising from the furor over their use of recordings of phone conversations between attorneys and clients at the pretrial facility in Leavenworth.
Details remain to be worked out, but after a highly charged day-long hearing Tuesday in federal court, U.S. Attorney Stephen McAllister said Wednesday that his office was prepared to work out an agreement with the Federal Public Defender’s Office and the special master appointed to look into the tapings.
David R. Cohen, the Cleveland attorney who had been appointed special master by the court, said he hoped the agreement meant defense attorneys and the U.S. Attorney's Office would begin acting "more openly and professionally" with each other.
"If that happens," Cohen said, "the citizens of Kansas City, Kansas, and Kansas City, Missouri, are the big winners, as they will enjoy an increased quality of justice for the entire community."
The disclosure nearly two years ago that attorney-client calls had been recorded triggered an uproar among defense attorneys, who said it struck at bedrock principles of due process and the right to counsel under the Constitution’s Sixth Amendment.
McAllister's dramatic announcement came after the parties asked U.S. District Judge Julie Robinson to delay the resumption of Tuesday's hearing and met informally in the courthouse for nearly two hours to see if they could reach some kind of accord.
In a highly unusual move, the Federal Public Defender had subpoenaed more than a dozen current and former employees of the U.S. Attorney’s Office to testify after Cohen reported that prosecutors had ceased cooperating with his investigation.
At Tuesday’s hearing, a current federal prosecutor, Scott Rask, declined to answer dozens of questions after the U.S. Attorney’s Office invoked a rule governing the extent to which federal agencies can release information.
“I’m not authorized to answer that question,” Rask repeatedly responded to questions by Cohen and attorneys with the Federal Public Defender.
The hearing also exposed the degree to which prosecutors, while initially claiming to cooperate with the special master’s inquiry, were directing their subordinates to withhold information from Cohen.
That may have prompted McAllister, who was confirmed as U.S. Attorney last year, after the tapings had been revealed, to reconsider his office’s position.
McAllister, through a spokesman, declined to comment.
Any agreement would have to address the volatile issue that led Robinson to appoint Cohen: the recording of attorney-client phone calls at the Leavenworth Detention Center and their use by prosecutors.
Criminal defense attorneys inadvertently learned of the recordings in mid-2016 in a criminal case accusing inmates and guards at Leavenworth of trafficking in drugs and other contraband. After a video recording surfaced of an inmate who had just met with his attorney, criminal defense attorneys discovered that their calls and meetings with clients may have been taped.
Evidence at a hearing in August 2016 revealed that the private contractor operating the facility, then known as Correction Corporations of America and since rebranded as CoreCivic Inc., had made recordings of confidential conversations between inmates and their attorneys and may have passed some of it on to government prosecutors in response to a grand jury subpoena.
As a result, Robinson appointed Cohen, a neutral third party, to investigate, later expanding the scope of his investigation to look into whether the government obtained and used such recordings. After initially cooperating, the U.S. Attorney’s Office in October said it would no longer provide Cohen with the information he was seeking, triggering the hearing that began on Tuesday.
A 24-page letter written by Steven D. Clymer, a federal prosecutor in New York who was appointed to act as the contact with the U.S. Attorney’s Office, asserted that there was no evidence suggesting any Sixth Amendment violations.
Moreover, Clymer wrote, “There is no evidence that the recording of attorney-inmate meetings or outgoing inmate telephone calls to attorneys was conducted at the direction of the OUSA (U.S. Attorney’s Office).”
Cohen, in the course of his investigation, found that 188 attorney-client phone calls had been recorded at Leavenworth and 700 meetings videotaped.
Any agreement with the U.S. Attorney’s Office would likely require that procedures be put in place to ensure that attorney-client phone calls and meetings at Leavenworth are not recorded.
Cohen told KCUR after the hearing that McAllister "deserves credit for seeing this as an opportunity and not a problem; in particular, an opportunity to reach across the aisle and work hand-in-hand with the Public Defender to find ways to improve and to increase mutual trust."
"The willingness to say, 'Let's sit down and see if we can work things out' is the first step toward rapprochement," Cohen said.
An agreement probably would include retrospective relief as well. On Wednesday, McAllister agreed to dismiss the charges against one of the contraband defendants and to file a motion to dismiss the charges against another.
The contraband case, known as U.S.A. v. Black et al, was announced with great fanfare in early 2016, but has been overshadowed by the uproar over the tapings.
Last June, the U.S. Attorney’s Office belatedly disclosed that a prosecutor in the office, Erin S. Tomasic, who is no longer employed there, had listened to recorded calls between a defendant and his attorney.
Tomasic testified on Tuesday that she had filed a complaint with the Office of Professional Responsibility against her supervisors, including former acting U.S. Attorney Tom Beall. The OPR is an office within the U.S. Department of Justice that examines attorney misconduct by prosecutors.
Tomasic, who was at the center of the tapings controversy, blamed her superiors for authorizing her after-hours entry into Robinson’s chambers in August 2016 to deliver evidence. She was later excoriated by Robinson, and said her supervisors failed to correct the record that she had not acted on her own.
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.