Federal judge holds Kansas prosecutors in contempt

A federal judge has held federal prosecutors in contempt for violating preservation orders and failing to cooperate with a special master’s investigation of video and audio recordings of attorney-client conversations at a detention facility in Leavenworth, Kansas.

U.S. District Judge Julie A. Robinson issued the ruling in a 188-page order Aug. 13 regarding the CoreCivic Leavenworth Detention Center. The center’s detainees include people awaiting trial for cases in the Western District of Missouri.

The long-awaited ruling caps a three-year investigation stemming from revelations in August 2016 that people detained at the center were recorded on soundless video while meeting with their attorneys in visitation rooms, and that federal prosecutors had obtained the recordings through a subpoena in a drug-smuggling case involving the center.

Audio recordings of attorney-client phone calls at the center later surfaced during discovery for the drug-smuggling case.

Kansas Federal Public Defender Melody Brannon alleged the recordings amounted to Sixth Amendment violations by prosecutors from the U.S. Attorney’s office for the District of Kansas. In response to the allegations raised, Robinson appointed a special master to investigate the recordings.

In her order, Robinson said federal prosecutors “had knowledge of the Court’s preservation and cooperation orders, yet disobeyed them.”

While she said she can’t compel the government to comply now, she agreed to award fees and costs for the Federal Public Defender. Robinson asked the parties for additional briefing on the issue of fees.

Robinson declined to make a sweeping ruling on Sixth Amendment violations in the case, however.

Brannon’s office sought global relief regardless of whether the government looked at, listened to or used the communications, Robinson said. The office asked Robinson to dismiss detainees’ cases, or as an alternative, grant a 50 percent reduction of sentences for all clients who remain in custody.

Prosecutors have argued that the court must evaluate cases on an individual basis, focusing on whether there was a Sixth Amendment violation with respect to individual detainees.

Robinson said she “reluctantly agrees” with the government, noting that a finding of purposeful intrusion into the attorney-client relationship requires the detainees to show the recordings were protected attorney-client communications.

She said she can’t make individual determinations based on the record currently before her.

“Because both the attorney-client privilege and the Sixth Amendment are personal to the defendant, any generalized application of the limited record before the Court to establish blanket Sixth Amendment violations would be both inappropriate and premature,” she said.

Robinson ordered the parties to submit a list of pending cases so that they can be consolidated for discovery, which will be overseen by Chief Magistrate Judge James O’Hara.

The judge noted that, as of the date of her order, 110 petitions have been filed seeking relief on the alleged Sixth Amendment violations and prosecutorial misconduct discovered in the drug-smuggling case.

Robinson also ruled on additional controversies that emerged in the case. One was the issue of phone call privatization, in which detainees’ attorneys were instructed to take steps so their calls with clients would not be recorded.

Some of those calls still were recorded, and the government alleged the calls were not privileged because of a preamble message on phones used by detainees, which warns that their calls may be recorded.

Robinson said most center detainees lacked the information to waive their privilege when they called their attorneys. She said the detention center did not sufficiently inform them of the privatization process and the facility’s own protocol did not work as designed.

“All of these facts counsel against a blanket finding that a [facility] detainee waived the right to confidential communications with his or her attorney with ‘eyes wide open,’” she said.

“Instead, detainees and defense attorneys were provided with incorrect, misleading, and inconsistent information about how to accomplish a confidential phone call at [the center].”

In an email, Brannon said Robinson’s decision “speaks for itself.” A spokesman for the U.S. Attorney’s Office declined to comment.

The case is U.S. v. Black et al., 2:16-cr-20032.

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