A federal judge in Kansas City, Kan., said Wednesday she will give wide latitude to an investigation into recordings of phone calls and video of meetings between attorneys and inmates at Leavenworth Detention Center.
Defense attorneys representing inmates at the privately-run federal prison objected when they learned last month that their meetings with clients had been recorded. Such conversations are privileged by law, and the prison had offered repeated assurances that they would be private.
On Wednesday, U.S. District Judge Julie Robinson questioned federal prosecutors about recordings they had obtained from the prison during a contraband investigation. Robinson said a special investigation into the case would seek any violations of prisoners’ Sixth Amendment rights and could end in sanctions against the Kansas U.S. attorney’s office or dismissal of the contraband case.
The judge scolded prosecutors for rushing forward with the case, which she called a “horrendous situation.”
“You all need to get your act together,” Robinson said.
Prosecutors said they obtained the recordings inadvertently while gathering evidence of a contraband ring at the prison that could involve as many as 95 inmates and 60 others. Assistant U.S. Attorney Erin Tomasic said she was overwhelmed with the amount of material and made mistakes.
A grand jury subpoena for all surveillance video at the prison produced some footage of meetings between attorneys and clients. Dozens of phone calls between attorneys and their clients were mistakenly provided to other lawyers in the case.
“It was messy,” Tomasic said. “I know I’ve learned a lot from this and I think everyone in our office has.”
A spokesman for the U.S. attorney’s office said prosecutors did not believe any criminal defendants would be harmed by the recordings.
But the judge said it appeared some inmates’ rights had been violated.
The federal Bureau of Prisons forbids recording in attorney-client meeting rooms. But the company that runs the Leavenworth prison, Corrections Corporation of America, insists that silent video recordings of inmate-attorney meetings “are a standard practice” throughout the country and are used for prison security.
Last month, Robinson ordered the recordings stopped.
Inmate phone calls are recorded in the prison, which offers attorneys a system to request that recording be disabled for them.
But one defense attorney wrote to the court Tuesday that calls between himself and a client in Leavenworth had been recorded despite multiple requests that the recording be stopped and assurances from prison officials that it had been.
The case is symptomatic of a failure to respect attorney-client privilege in prisons and jails across the country, said Barry Pollack, president of the National Association of Criminal Defense Lawyers.
Several Kansas and Missouri jails have acknowledged recording attorney-client meetings. Like privately-run facilities, they are not bound by Bureau of Prisons rules.
“What I think is particularly troubling about it,” Pollack said of the Leavenworth case, “is you have a failure on the part of the institution that is recording something that it shouldn’t be. Here, they turned it over to the prosecutors.”
“Anyone facing prison time needs legal counsel,” he continued. “And essentially, they aren’t getting it.”
After setting the course of the investigation, Robinson said she had recently been “troubled” to learn that her staff had discovered the prosecutor Tomasic in her chambers after hours, soon after a large package of evidence had been stored in the judge’s office. Prosecutors said Tomasic was only dropping off another piece of evidence, and had been let in by a U.S. marshal.
The U.S. attorney and the marshal apologized. But Robinson said she was not fully convinced by the explanation.
“It just doesn’t make sense to me. It boggles my mind,” she said. The judge said all evidence will be locked in a vault.
Robinson said she planned to order the U.S. Department of Justice to pay for the investigation, which is expected to cost hundreds of thousands of dollars.
The Associated Press contributed to this report.