In March 2017, Special Master David R. Cohen filed a request with the U.S. District Court in Kansas, seeking to enlarge his investigation into whether the Leavenworth Detention Center (LDC) and the private contractor that operates the facility, Corrections Corporation of America (CCA, which recently rebranded as CoreCivic), had improperly recorded privileged attorney-client meetings and shared those recordings with federal prosecutors. Having determined that the recordings were in fact made and shared, Cohen now wants to determine whether that practice was commonplace.

His review had already found 227 phone call recordings and at least 30 videos of attorney-client meetings in the U.S. Attorney’s Office in Kansas City. Around 700 attorney visits may have been recorded without the parties’ knowledge – violating a fundamental protection for criminal defendants established by the Sixth Amendment.

Cohen, a federal law clerk, was appointed by U.S. District Court Judge Julie Robinson, who issued an order in August 2016 directing LDC and CCA officials to immediately stop recording private attorney-client meetings and phone calls. The order came after a hearing confirmed that CCA had made recordings of confidential conversations between prisoners and their lawyers, and gave some of them to prosecutors in response to grand jury subpoenas. [See: PLN, Oct. 2016, p.44].

Apparently, an investigation into the distribution of contraband at LDC turned into what is now being called an “explosive” case of violations of attorney-client privilege on a “massive scale.”

The Kansas Federal Public Defender, which brought the recordings to the attention of the federal district court, first learned of them after an attorney was informed by federal prosecutors that they had a video recording indicating she had a conflict of interest and should withdraw from a case. That lawyer, Jacquelyn Rokusek, then told the public defender’s office – which represents about 75 clients at LDC – about the video. LDC is a pretrial detention facility that houses federal prisoners from Kansas, Missouri, Nebraska and Iowa.

Rokusek was allowed to view some of the recording, which also included meetings between other attorneys and their clients. After she brought the video to the attention of the Federal Public Defender’s office, they immediately sought an emergency hearing that resulted in Judge Robinson’s order.

The case has provoked anger from criminal defense attorneys, 50 of whom packed the courthouse for the hearing. One of those attorneys was Peter Joy, a law professor at Washington University in St. Louis. Joy said legal ethicists regard it as professional misconduct to violate the attorney-client privilege. Secret recordings would definitely fall into that category, he noted.

Judge Robinson’s order applied to all detentions facilities in Kansas and Missouri that house federal prisoners. CCA spokesman Jonathan Burns said in an email that the company was “fully complying” with the federal court order.

“We do not record inmate/attorney telephone conversations at Leavenworth or any other CCA facility,” Burns wrote. “Video recordings of inmate/attorney meetings, which do not capture audio, are a standard practice in correctional and detention facilities throughout the country and are used solely to protect the safety and security of inmates, their attorneys, and the broader correctional setting.”

CCA initially denied the existence of the recordings, admitting only under pressure from Cohen’s investigation that it not only video recorded the meetings but allowed federal prosecutors to compile videos of privileged attorney-client conversations. Further investigations will determine whether CCA has recorded attorney-client meetings at the dozens of other facilities it runs nationwide, and whether it routinely turns such footage over to prosecutors.

In Kansas, CCA contracts with Securus Technologies, a prison phone company, for the video and audio recording services that captured the privileged conversations. In 2015, someone hacked Securus and released 70,000 prisoner phone call recordings to The Intercept, which found they included as many as 14,000 attorney-client conversations. Securus recently settled a lawsuit involving jails in Austin, Texas, agreeing to implement a system that allows lawyers to register their phone numbers on a “do not record” list for calls with their incarcerated clients. [See: PLN, Sept. 2016, p.16; Aug. 2016, p.1].

At LDC, Securus said CCA was responsible for designating attorney numbers as private, nonrecorded numbers, though Securus did the actual recording.

While one of the videos in question includes audio, much could still be learned from video-only recordings, said criminal defense attorney Richard Ney, who testified at the hearing before Judge Robinson. Reading lips, observing the participants’ demeanors, and viewing computer screens and documents were some of the ways information could be gleaned from the recordings, he stated.

The prosecutors who had subpoenaed the videos were also scrutinized. It is unknown whether the prosecutor who signed one of the subpoenas, Erin Tomasic, and her supervisor, Kim Flannigan, acted without the knowledge of their colleagues in the U.S. Attorney’s Office in Kansas City, or whether the practice was routine.

A spokesman for that office, Jim Cross, claimed they “would not knowingly seek to obtain privileged attorney-client information.” He refused to comment further, citing the pending litigation.

Professor Joy was not so tight-lipped, stating, “If anybody consciously made a decision like that, in my opinion that person is unfit to have any job having anything to do with the government.”

None of this surprised Mike Warner, a former Assistant U.S. Attorney in the Kansas City office. In an interview with The Daily Beast, he cited “strong disagreement with prosecution practices” in the office, which he said operates under a “culture immune from supervision.”

Proceedings in the case remain ongoing; Cohen is charging $500 per hour while serving as a Special Master, and federal officials have been ordered to pay those costs. See: United States v. Black, U.S.D.C. (D. Kan.), Case No. 2:16-cr-20032-JAR. 

Sources: www.kcur.org, www.thedailybeast.com, www.cjonline.com