Recordings Of Attorney-Client Meetings Spur Outrage Among Criminal Defense Lawyers

Aug 15, 2016

Criminal defense lawyers are expressing outrage that a private prison contractor in Leavenworth recorded their meetings with clients and turned some of the footage over to federal prosecutors. As Dan Margolies reports, a federal judge has ordered the contractor to immediately halt the recordings.

An investigation into the distribution of contraband at the Leavenworth Detention Center has morphed into an explosive case involving possible violations of attorney-client privilege on a massive scale.

Evidence at a hearing Tuesday revealed that the private contractor operating the facility, Corrections Corporation of America (CCA), made video recordings of confidential conversations between inmates and their attorneys and passed some of it on to government prosecutors in response to a grand jury subpoena.

On Wednesday, U.S. District Judge Julie Robinson told prosecutors to turn over the footage to the court and ordered all detention facilities in Kansas and Missouri housing detainees charged in her district to immediately stop recording attorney-client meetings and phone calls.

Robinson also scheduled another hearing next Tuesday to look into the appointment of an independent third party, or special master, to examine the matter and make recommendations to the court.

The Kansas Federal Public Defender Office says it first learned of the recordings last week after a private attorney, Jacquelyn Rokusek, was told by federal prosecutors they had evidence, in the form of a video recording, that she had a conflict of interest and should withdraw from a related case. The Federal Public Defender represents about 75 clients at CCA Leavenworth, a pretrial detention center that houses inmates from Kansas, Missouri, Nebraska and Iowa.

Rokusek was later given an opportunity to review the recording, which included videos of meetings between other attorneys and their clients. She brought the recording's existence to the attention of an employee of the Federal Public Defender, which led to the emergency hearing on Tuesday.

The packed hearing drew more than 50 criminal defense attorneys from throughout the area, many representing clients housed at the Leavenworth facility, as well as a smattering of prosecutors and inmates free on bond.

The case has provoked outrage among criminal defense lawyers, who say it strikes at bedrock principles of due process and the right to counsel under the Constitution’s 6th Amendment.

Washington University law professor Peter Joy, who testified at the hearing, said in a phone interview Thursday that legal ethics rules in every state regard it as professional misconduct for lawyers to engage in dishonesty, fraud, deceit or misrepresentation. “And secret recordings would fall into that area of misrepresentation or deceit,” he said.

The existence of the recordings was disclosed in court by Rokusek, who was put on the witness stand by Melody Brannon, the head of the Kansas Federal Public Defender’s office. Brannon told the court that CCA had video recordings of attorney-client meetings in the contraband case spanning a 10-month period from July 2015 to April 2016.

“When we go to CCA, every attorney that meets there had an expectation of privacy,” she told the court. “We expected those meetings with our clients were confidential. We expected that those meetings with our clients were private. That’s always how it has been, that’s what we understood from CCA and that was in fact not the case.”

Asked to comment on the recordings, Jonathan Burns, a CCA spokesman, said in an email that the company was “fully complying” with Judge Robinson’s Wednesday order.

“We do not record inmate/attorney telephone conversations at Leavenworth or any other CCA facility,” he said. “Video recordings of inmate/attorney meetings, which do not capture audio, are a standard practice in correctional and detention facilities throughout the country and are used solely to protect the safety and security of inmates, their attorneys and the broader correctional setting.”

Although none of the recordings in question had audio, another witness, Wichita criminal defense lawyer Richard Ney, testified that much could be gleaned from video recordings by reading lips, observing participants’ demeanors and viewing computer screens and documents.

Monitoring cameras are present and visible in seven of the nine lawyer visitation rooms at the Leavenworth facility, but Brannon said lawyers were never told that the cameras were recording their meetings.

On its website, CCA says that it protects the confidentiality of attorney-client visitations.

Unknown at this point is whether CCA has recorded attorney-client meetings at its other facilities and whether it routinely turns the footage over to prosecutors. CCA manages 85 facilities for federal, state and local governments throughout the country, according to information on its website.

Also unknown is whether the prosecutor who signed the subpoena in the case, Erin Tomasic, and her supervisor, Kim Flannigan, acted without the knowledge of other attorneys in the U.S. Attorney’s office in Kansas or whether the practice in that office was more widespread.

Jim Cross, a spokesman for the U.S. Attorney's office in Kansas, said in an email that the U.S. Attorney’s office “would not knowingly seek to obtain privileged attorney-client information.”

He declined to go into more detail, saying the matter is in litigation.

“If anybody consciously made a decision like that, in my opinion that person is unfit to have any job having anything to do with the government,” Joy, of Washington University said, referring to the U.S. Attorney's subpoena of the recordings.

Joy likened the recordings – even if they provided little help to prosecutors – to someone breaking into a house or office.

“If someone breaks in but doesn’t steal anything, they still have done something that’s wrong,” he said. “The attorney-client relationship is supposed to be a secure relationship and it’s not supposed to be something that somebody invades,” he said. “Whether it’s a video without audio so it’s sort of like a peeping tom-ish kind of thing, or whether there is audio and it’s an eavesdropping kind of thing – even if the communication itself has little or no value, that still doesn't excuse doing it.”

The contraband case at the center of the video controversy was filed in April. It alleges that inmates at the Leavenworth facility conspired with corrections officers and outsiders to distribute

methamphetamine, synthetic cannabis and tobacco in the facility. Brannon told the court Tuesday that up to 90 inmates and 60 outsiders might ultimately be involved in the case.