Controversy Over Attorney-Client Recordings At Leavenworth Continues

Jan 5, 2017

The Kansas Federal Public Defender says federal prosecutors have failed to turn over all attorney-client phone calls that were recorded at the pretrial detention center in Leavenworth to a special master looking into their legality.

In a court filing Wednesday, the public defender identified recorded calls to at least two attorneys that were not disclosed by prosecutors.

“The Special Master should be given authority to determine why these telephone calls were not included in the material provided by the government, and whether there are still recorded calls in the USAO (U.S. Attorney’s office) possession or knowledge that should have been disclosed,” the filing states.

In October, U.S. District Judge Julie Robinson appointed David Cohen, a Cleveland attorney, as special master to investigate whether, and to what extent, the pretrial detention facility had turned over privileged video and audio recordings of attorney-client meetings to the U.S. Attorney’s office in Kansas.

The issue arose as part of a wide-ranging criminal case in which inmates and corrections officers at the facility have been charged with distributing drugs and other contraband within its walls. Initially, six defendants, including two inmates, were charged. In its filing Wednesday, the public defender says the government has since identified 95 additional detainees who may be subject to indictment.

The underlying criminal case, however, has largely been overshadowed by the revelations last summer that the private operator of the facility, Corrections Corporation of America (CCA), had been recording attorney-client phone calls and meetings and, in some cases, turning the recordings over to prosecutors in the U.S. Attorney’s office in Kansas City, Kansas.

In a report last month, Cohen identified 229 recorded calls made to known attorney phone numbers. The public defender now says that some recorded calls were not identified by Cohen because prosecutors had failed to turn them over to him.

A spokesman for the U.S. Attorney’s office did not return a call seeking comment. Lawyers with the Federal Public Defender could not be reached for comment.

Cohen, reached at his Cleveland office, said he did not know why the government might not have produced some recordings.

“I don’t think one of those reasons is that it’s in the court’s vault and I didn’t come across it. I don’t think it’s because I didn’t see something that’s there,” he said. “What that reason is could be any number of things. I just don’t know.”

The public defender and U.S. Attorney’s office have been at odds since the initial revelations of the tapings. That mutual antagonism has spilled over into a dispute over the scope of Cohen’s investigation. The public defender wants him to examine whether CCA routinely recorded attorney-client meetings and turned them over to the government. The U.S. Attorney wants Cohen’s investigation limited to editing out and retaining privileged attorney-client matters.

The public defender’s suspicions have been heightened by what it says are other discrepancies in the government’s production of information to Cohen.

For example, it says, the government told the court in August that it was unaware CCA had recorded, and not simply monitored, attorney-client meetings. Yet two weeks later, it says, the government told the court that it had obtained 18 terabytes of surveillance footage from CCA, including recordings of attorney-client meeting rooms.