A Kansas federal judge expressed suspicion Wednesday that a federal prosecutor "improperly tried to access her office" in a possible attempt to gain access to evidence.
That’s only the latest upsetting development out of a troubling case, one that has gotten surprisingly little media attention these past few weeks. Leavenworth Detention Center, a private prison in Kansas, is facing investigation after prison officials allegedly videotaped visits and recorded calls between inmates and their attorneys—and then gave the recordings to prosecutors. As Slate stated, the prison "appears to have basically been engaging in a widespread fishing expedition for evidence gleaned from secret videotapes—evidence they then handed off to prosecutors without the knowledge of prisoners nor their lawyers." Such a violation is extremely serious, and the implications are almost as serious. From the Topeka Capital-Journal:
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.
The drug trafficking case at issue began in September of last year, when a special agent with the Kansas Bureau of Investigation surreptitiously listened to inmates' phone conversations with family and friends. The agent allegedly heard one inmate, Stephen Rowlette, discuss how high his cell mates were and state that "some inmates were 'making a mint' off the drug trade.” The Bureau of Investigation then began to look into possible drug trafficking.
From the Capital-Journal:
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.
Seven months later, in early April, authorities obtained a search warrant. They had rushed the investigation, but they wanted the win. Within just a few days, U.S. Attorney Barry Grissom held a news conference where he disclosed that seven people had been charged as a result of the investigation. One of those people was a prison guard. Grissom had recently announced his impending retirement, and two days after the press conference he retired officially.
In July, defense attorneys first became aware of the constitutional violations. It was then that the U.S. Attorney's office informed opposing counsel that some of the footage obtained in the search warrant included recordings of private attorney-client meeting rooms. The recordings they provided to defense counsel had no audio. According to prosecutors, the footage did not ever include audio. Defense attorneys dispute this.
The practical implications of audio access are enormous, but whether or not audio was ever on the recording is constitutionally irrelevant. From Slate:
Peter Joy, who teaches criminal law and legal ethics at Washington University in St. Louis, says that for constitutional purposes it wouldn’t matter that the video recordings may not in fact contain any sound. He noted that confidential communications between a client and her attorney are not limited to verbal discussions; they can include written statements and even those acted out in silence. “Even if the tape showed only the back of the prisoner and the lawyer’s face, it can still be confidential,” Joy told me. “Confidential communications can include a client’s demeanor and just the fact that he appears very upset may violate confidentiality.”
The conflict over the videotape footage had barely begun before new indications of privacy violations surfaced. In early August, defense attorneys discovered that prison officials were not only video taping privileged meetings, but also recording privileged phone calls. And once again, law enforcement provided those recordings to the U.S. Attorney's office. This time, there was audio. From the Capital-Journal:
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.
Evidence of these dual violations led U.S. District Judge Julie Robinson to quickly grant a motion filed by defense counsel to issue a cease and desist of all "(1) audio-visual recording of attorney-client communications in the detention facility; (2) audio recording of attorney-client phone calls; and (3) audio-visual recording of attorney-client videoconference calls." The judge was clearly bothered by the violation of the defendants’ rights, and even said she had evidence of violations in other facilities in both Kansas and Missouri, as well.
She said she would appoint a special master to investigate how the recordings were distributed, and explicitly criticized the prosecution. From the Capital Journal:
Robinson lit into prosecutors for their handling of the case. She questioned rhetorically why prosecutors were in such a rush to file the cases. Why did individuals who were already in custody need to be indicted so quickly, she asked.
“You all need to get your act together,” Robinson told the prosecutors.
Prosecutors weren't happy. They vacillated between admitting their mistake ("Assistant U.S. Attorney Erin Tomasic admitted prosecutors should have waited and gotten their 'ducks in a row,'" reported CJ Online), to denying any responsibility for intentionally accessing the recordings ("I want the court to know I did not intend to gain that footage,” Tomasic said), to denying that the recordings were even protected. “Quite frankly, we don’t agree that every meeting in the (lawyers’) visiting rooms is privileged,” stated Assistant U.S. Attorney Debra Barnett in late August.
What a cowardly lack of consistency. Once again, the most powerful player in the room plays dumb when a mistake is made. Once again, the prosecutor—whose role it is to defend the law—ends up subverting it when it is personally beneficial.
All the above statements are disingenuous, but Barnett's is particularly absurd. Attorney-client privilege is considered the oldest form of privileged communication, and one of the most encompassing. Even seeing a silent video recording of a defendant communicating with their attorney is an egregious invasion of privacy and runs counter to the Constitution's protection of the defendant. From the Capital-Journal:
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.”
It is critical that defendants feel comfortable speaking to their lawyers. The fact that prosecutors are willing to spit in the face of such protections is concerning.
Barnett's response to Judge Robinson's appointment of a special master was also telling. As we highlighted earlier this week, it was yet another example of a prosecutor trying to argue that she should have more power than the judge.
The Capital Journal reports:
In Barnett's 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 is a federal judge overseeing a federal case, and she genuinely suspects impropriety. What other authority does she need? The U.S Attorney’s refusal to consent indicates that the prosecution has the authority to refuse.
But this is yet another way prosecutors gain power. Instead of arguing that they should have more control, they argue that everyone else should have less. Special masters, like special prosecutors, are often the only tool we have at our disposal to hold prosecutors accountable.
Like many prosecutors we've covered at Daily Kos, Barnett and her colleagues are the home team arguing that the referees have no right to make decisions.
For now, the investigation is ongoing—but prosecutors' audacious behavior continues. On Wednesday, things got even more disturbing. From AP:
U.S. District Judge Julie Robinson accused a federal prosecutor Wednesday of improperly trying to access her office last month while she was away.
[…]
Near the end of the all-afternoon hearing, Robinson said Assistant U.S. Attorney Erin Tomasic had tried to get into her chambers on Aug. 25 after the courthouse had closed.
Robinson's law clerk was in Robinson's office when she heard voices and discovered Tomasic and a U.S. marshal outside the doors preparing to come in, the judge said.
The judge stopped short of drawing conclusions about why an assistant prosecutor would want to come into her office — where video evidence from CCA has been impounded — but noted that if the federal public defender's office had attempted such a thing the U.S. attorney's office would surely have pressed for an investigation.
The U.S. Attorney's office claims that they were only trying to get access to the hallway outside of the Judge's office so they could slip documents under the door.
That wasn't the only instance of Judge Robinson’s dissatisfaction with the prosecution, either.
Prosecutors have [said] that they weren't aware that attorney-client meetings were being recorded until a grand jury subpoenaed all of the video recordings at the private prison as part of a massive contraband investigation earlier this year.
At the hearing Wednesday, Robinson questioned prosecutors about when they learned of the recordings and what they did after making that discovery. The judge said she still had many unanswered questions about the government's explanation for the recordings and how they have been used.
It is difficult to convey the extremity and outrageousness of this invasion of privacy and violation of defendants’ constitutional rights. Prosecutors, however, don’t seem to care. From KCUR:
Melody Brannon, the head of the Federal Public Defender’s office in Kansas, accused federal prosecutors of taking a “derisive and dismissive” attitude toward what she termed “brazen” violations of the Constitution’s Sixth Amendment.
“The government doesn’t understand the gravity and magnitude of the issues,” she said, calling the government’s invasion of the privilege unprecedented.
Ultimately, this whole controversy is yet another example of the impenetrable obstacle that prison and criminal justice reform face—and will continue to face.
There is no oversight, there are no boundaries, and there is no accountability. Who can we depend on to ensure that police, prosecutors, and prisons are protecting the rights of those they actively fight against? Who's watching the watcher?