TOPEKA — When attorneys said in court Tuesday that phone calls between lawyers and inmates at Leavenworth Detention Center had been recorded and obtained by federal prosecutors, the development was just the latest revelation in what a United States public defender says was a systemic violation of constitutional rights.
The assertions by defense attorneys that federal prosecutors obtained video recordings of in-person meetings and audio of calls between inmates and their lawyers at Leavenworth Detention Center already have affected criminal cases resulting from a sprawling investigation of drug trafficking within the facility. Other cases could be ensnared as well.
The U.S. Constitution guarantees individuals accused of crimes with a right to counsel, and the ability of attorneys to speak privately with their clients about their defense is a sacrosanct legal concept. Defense attorneys argue the recordings violate that privilege — on a potentially unprecedented scale.
A flurry of court filings, as well as a hearing Tuesday in U.S. District Court in Kansas City, Kan., begin to reveal the potential scope of the recordings. The situation has developed quickly since the beginning of August, but the roots of the current controversy go back nearly a year ago.
The recordings have been brought to light as part of the ongoing prosecution of seven individuals who are accused of participating in a smuggling ring while in Leavenworth Detention Center, a facility privately run by Corrections Corporation of America.
In September 2015, the Kansas Bureau of Investigation began an examination of the drug trade within the detention center. Special agent Jeff Stokes gathered evidence by listening to the phone calls of inmates with their friends and family members.
Listening to the calls, Stokes heard inmate Stephen Rowlette describe how his cell mates were “blistered” and “high.” According to an affidavit, Stokes listened as Rowlette said some inmates were “making a mint” off the drug trade.
Ultimately, the investigation expanded to include the U.S. Marshals Service, the U.S. Secret Service, Internal Revenue Service and Social Security Administration. Law enforcement, based on wire transfer information, believed more than 90 inmates at the facility (with a capacity of more than 1,100) were involved in drug and contraband trafficking within the detention center.
Law enforcement executed a search warrant inside the facility April 8. According to court filings from the U.S. Attorney’s office, before conducting the search, an attorney within the office established a segregated “taint team” to review any potential attorney-client material swept up in the investigation.
In a news conference April 11, U.S. Attorney Barry Grissom announced charges against seven people related to the investigation, including a guard at the prison.
The announcement of the charges was the last high-profile event Grissom presided over. Grissom had announced his resignation days earlier, and it became effective two days after the news conference.
Law enforcement agents subpoenaed surveillance footage from the detention center April 12. In May, the facility handed over six drives of 3 terabytes each.
The U.S. Attorney’s office says in July, it disclosed to the defendants the surveillance footage included camera angles showing attorney-client meeting rooms, but that audio was not recorded.
On Aug. 4, counsel for Richard Dertinger, who is charged in a separate drug case, asserted the video footage is covered by attorney-client privilege. In a court filing, the U.S. Attorney’s office said it agreed not to review the footage until any litigation related to attorney-client privilege was resolved.
“On Aug. 5, 2016, the surveillance footage was marked as containing potential attorney-client material and placed in the government’s vault,” the filing reads.
Dertinger’s attorney, Jacquelyn Rokusek, filed a motion Aug. 8 seeking to put a halt to the video recordings. She argued the recordings, as well as prosecutors’ access to them, violated attorney-client privilege.
The recordings have a chilling effect and impede the ability to prepare for trial, Rokusek wrote.
“The meetings between counsel and our respective clients are not only visually monitored, but recorded. Those recordings are then, at least in some cases, provided to the United States Attorney’s Office. The documents we review with our clients, how our clients react to those documents, and the notes taken by client and counsel are open to government inspection and review,” Rokusek wrote.
The defense attorneys for the inmates charged in the smuggling ring investigation filed similar motions that week. The U.S. Attorney’s office has pushed back on suggestions it tried to violate attorney-client privilege.
“The U.S. Attorney’s Office would not knowingly seek to obtain privileged attorney-client information,” Jim Cross, a spokesman for the U.S. Attorney’s office in Kansas, has said.
Last week, Judge Julie Robinson ordered all detention facilities in Kansas and Missouri to halt recording of attorney-client meetings and phone calls. A letter from U.S. Marshal Ronald Miller to Robinson confirmed the facilities had stopped and that cameras in the Leavenworth center had been removed.
Mark Johnson, an attorney who sits on the board of directors of the American Civil Liberties Union of Kansas, called the recordings “foolish.” He described the chilling effect that can happen when people believe they are being observed.
“If the person who’s giving the information — here the inmate — even thinks that the conversation is being listened into, they’re going to be less forthcoming. They’re not going to be as candid and complete with their lawyer as they might be otherwise,” Johnson said. “So that’s why we have these privileges.”
Corrections Corporation of America says recordings are commonplace at detention facilities across the U.S. The company told the Associated Press the recordings didn’t contain audio and were for the safety of inmates, attorneys and the facility. The for-profit company manages prisons across the country.
Early August filings by defense attorneys suggested the detention center was recording phone calls between lawyers and inmates, but the allegations came to a head Tuesday.
Like the video recordings, the defense attorneys say the phone recordings were turned over to the U.S. Attorney’s office by the detention facility. The files were then shared with attorneys — but the files contained audio of inmates who were not their clients.
At the hearing, the attorneys submitted a page listing nine inmates whose calls had been recorded. The document shows the number of calls recorded between the inmate and his attorney.
The list indicates for one inmate, a total of 43 calls between him and his attorney were recorded from September 2014 through January 2015. The document lists 74 recorded attorney-client calls in total.
“The recording, seizure and dissemination of those confidential attorney-client phone calls violates constitutional, legal and ethical rules just as did (the facility’s) recording and production of confidential attorney-client visits,” Melody Brannon, a U.S. public defender, wrote in a motion.
In court Tuesday, Brannon said the government had engaged in a mass, systemic violation of constitutional rights. She called the government’s response “cavalier.”
Robinson, who already had ordered a halt to phone recordings, said she will appoint a special master to investigate the collection and distribution of the recordings.
An assistant U.S. attorney, Debra Barnett, suggested not all of the calls and video recordings might be privileged.
In her filing, she pushed back against the possibility the special master could investigate the detention facility or the U.S. Attorney’s office.
“The United States does not consent to this. The evidence demonstrates that such a request is unwarranted on the facts already presented, and outside the scope of this court’s authority and the issues presented and litigated within this case,” Barnett wrote.
Robinson has yet to determine the exact scope of the special master’s work. She indicated she likely will make the appointment in early to mid-September.