Federal judge holds US attorney's office in contempt in probe of recorded attorney-client calls

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A federal judge has held the Kansas U.S. Attorney’s Office in contempt of court for failing to cooperate and preserve evidence in a special master’s investigation into recordings of attorney-client phone calls.

U.S. District Judge Julie Robinson of Kansas City, Kansas, said the government employed a “wholesale strategy to delay, diffuse and deflect” during the investigation.

She found the government in civil contempt and ordered the parties to submit briefs on whether the Federal Public Defender is entitled to fees and costs as a sanction. The Kansas City Star, the Associated Press and KCUR have coverage of Robinson’s Aug. 13 opinion.

Robinson declined to find a per se violation of the Sixth Amendment right to counsel for defendants whose phone calls were recorded. But she said individual defendants could bring claims of prosecutorial misconduct that draw on her findings.

Petitions alleging violations of Sixth Amendment rights have already been filed by 110 defendants. At least three defendants have had their sentences vacated or their indictments dismissed as a result of the recordings, according to the Kansas City Star.

The recordings were made at the Leavenworth Detention Center, a prison run by Corrections Corporation of America, a private prison operator that has since changed its name to CoreCivic Inc.

Federal prosecutors had received the recorded attorney-client calls when they made a general request for all of a detainee’s calls, Robinson said. One review estimated that the U.S. attorney’s office accessed 1,429 attorney phone calls between 2010 and 2017. The review was necessarily incomplete because of “an incomplete if not scant paper trail,” Robinson said.

The review also found that every time a prosecutor made a general request for all recorded calls, there was a nearly 28% chance that the calls would include attorney-client conversations.

Two former prosecutors had “knowingly and intentionally” listened to the recorded attorney-client calls in one or more of their cases, Robinson said. The U.S. attorney’s office had characterized the lawyers as “rogue” attorneys and at first refused to search repositories other than those of the prosecutors.

Lawyers who wanted to prevent the recording of their phone calls had to go through a process. But some calls were recorded even when lawyers followed the process.

One of the former prosecutors who used the calls testified she had discussed the issue with other federal prosecutors during lunchtime conversations. Their conclusion was that phone calls placed by detainees to their lawyers weren’t privileged because they were on notice the call was being recorded. The group also concluded that if lawyers were “stupid enough” to talk to their clients over the phone, prosecutors had no obligation to disclose the recorded calls.

The special master in the case, David Cohen, previously determined that more than 700 attorney-client visits were likely recorded on video. Those recordings did not contain audio.

Robinson had appointed the special master to investigate after hearing evidence that a computer used to play the video recordings had been wiped clean.

Robinson said the U.S. attorney’s office “willfully misconstrued” the court’s early preservation orders to avoid preserving some evidence, and purposefully delayed issuing a formal litigation hold on materials until May 2017.

Management knew of problems with at least some prosecutors, yet delayed searching any files other than those of the two lawyers known to have listened to the recordings, Robinson said. The problems continued when an assistant U.S. attorney from New York was appointed in July 2017 to respond to the special master’s requests for information, according to Robinson.

“Under his direction, management defied the court’s orders and directives, continued to fail to preserve such that years of documents were potentially lost, and then only produced what they chose to produce,” Robinson said.

The case is United States v. Carter.

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