More than 1,300 phone calls between public defenders and inmates awaiting trial at the Leavenworth detention facility were improperly recorded over a two-year period, according to newly disclosed information in a civil lawsuit.
The blockbuster revelation comes as the Federal Public Defender’s office and the U.S. Attorney’s office in Kansas seek to resolve a long-running and contentious dispute over audio and video recording of attorney-client meetings and phone calls at the prison.
The stakes are enormous: If it's found that prosecutors impermissibly listened in on privileged attorney-client calls, that could result in those clients' charges or convictions being thrown out.
The latest disclosure emerged last week in a lawsuit against the detention facility's operator, CoreCivic, formerly known as Corrections Corporation of America, and the contractor responsible for its phone system, Securus Technologies Inc. The lawsuit was filed in 2016 by two attorneys, David Johnson and Adam Crane, who alleged their phone calls and meetings with clients were impermissibly recorded.
Crane no longer is a plaintiff, but Johnson last week moved to have the suit certified as a class action on behalf of all attorneys whose conversations or meetings were recorded at Leavenworth. In his motion, he said that, based on records obtained during discovery, 1,338 phone calls placed by detainees to their public defender attorneys had been recorded between 2011 and 2013.
The disclosure came as news to the Kansas Federal Public Defenders' office, which, in turn, moved for a protective order in separate, ongoing litigation over the recordings at Leavenworth. That litigation, which prompted the judge to appoint a special master to investigate the issue, seeks a complete accounting of the recordings and the extent to which inmates’ Sixth Amendment right to counsel may have been violated.
In its motion, the public defender's office says that “well before 2011,” it had asked to have its phone numbers placed on a list of attorney numbers not to be recorded, in accordance with CoreCivic (CCA) protocol. CoreCivic operates the Leavenworth Detention Center on behalf of the U.S. Marshals Service.
“Having complied with CCA protocol,” the motion states, “we understood that CCA phone calls from our clients would not be recorded.”
The public defender's office says its motion serves to notify the U.S. Attorney’s office, the U.S. Marshals Service, CoreCivic and Securus that its attorneys' phone calls to the detention facility, “regardless of any recorded preamble, is constitutionally and statutorily protected as attorney-client communication and as attorney work-product. Any access to, review of, or production to any other person or entity violates those protections.”
A spokeswoman for CoreCivic said the company does not comment on active litigation. An attorney for Securus did not return a phone call seeking comment. Melody Brannon, who heads the Kansas Federal Public Defender's office, declined to comment.
As part of his investigation, the special master, David R. Cohen, had found that some 200 attorney phone calls had been recorded at Leavenworth — and those phone calls included not just those involving public defenders but other criminal defense attorneys as well.
Cohen, asked about the discrepancy between the 200 phone calls he uncovered and the more than 1,300 uncovered in the proposed class-action lawsuit, said they almost certainly referred to “different universes of calls.”
“I examined about 49,000 phone calls that the government produced to me, which it had obtained in connection with their investigation into the (Core Civic) drug conspiracy case,” Cohen said, referring to the case in which the disclosures that attorney-client calls had been recorded first surfaced.
“I suspect (the class-action lawsuit) is referring to all of the calls that Securus recorded during some time period, not just the ones the government gave me in connection with their drug conspiracy investigation.”
Cohen said the larger number suggested that “the issue of the government having access to or possibly listening to calls between inmates and their attorneys may be more widespread than my numbers reflected, because I was only looking at a specific case and a limited collection of calls.”
It’s unclear whether this latest revelation about the extent to which attorney-client calls were recorded at Leavenworth will have an effect on negotiations between the U.S. Attorney’s office and the Federal Public Defender's office to resolve the issue.
Last month, the U.S. Attorney for Kansas, Stephen McAllister, said that his office was prepared to work out an agreement with the public defender's office. His announcement came midway through a hearing in which the the public defender's office asked the judge to find McAllister's office in contempt after it ceased cooperating with Cohen's investigation.
McAllister's office has been at the center of the tapings controversy because, in at least a handful of instances, it has acknowledged that prosecutors listened in on some of the taped calls.
U.S. District Judge Julie Robinson, who appointed Cohen as special master, directed him to look at whether CoreCivic had turned over privileged recordings of attorney-client meetings and calls to the U.S. Attorney’s office.
The U.S. Attorney’s office and the public defender's office have been at loggerheads since the initial revelations of the tapings surfaced nearly two years ago. The U.S. Attorney's office wants Cohen’s investigation limited to editing out and retaining privileged attorney-client matters. The public defender's office wants him to examine whether CoreCivic routinely recorded attorney-client meetings and turned them over to prosecutors.
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies