Judge: Government destroyed evidence in Leavenworth prison video investigation

The Leavenworth Detention Center is a privately run federal prison where private meetings between attorneys and their clients were reportedly recorded and viewed by officials.
The Leavenworth Detention Center is a privately run federal prison where private meetings between attorneys and their clients were reportedly recorded and viewed by officials. The Associated Press

A federal judge in Kansas City, Kan., has ordered a wider investigation into recordings of phone calls and video of meetings between attorneys and inmates at Leavenworth Detention Center after finding that government officials destroyed “critical evidence” in an earlier probe.

The new phase of the investigation, the judge wrote in an order Wednesday, will focus on the actions and motives of federal prosecutors and agents, some of whom have made “a number of inconsistent, inaccurate, or misleading statements” to the court.

A special master appointed last year is now ordered to determine if, and how, law enforcement officials used recordings of prison inmates talking with their attorneys — meetings that are protected by the Sixth Amendment and attorney-client privilege.

Wednesday’s order took federal prosecutors to task for a “lack of transparency” regarding their knowledge of the prison recordings. That comes after months of investigation at the prison that began last year when defense attorneys representing inmates in a contraband investigation learned that their meetings with clients had been recorded.

Federal public defenders protested that those conversations are privileged by law, and the prison had offered repeated assurances that they would be private. The prison is run under contract for the U.S. Marshals Service by CoreCivic, Inc. — formerly known as Corrections Corporation of America.

Last year, U.S. District Judge Julie Robinson appointed a special master, David Cohen, a Cleveland lawyer, to investigate the videos and recorded phone calls. Earlier this year, Cohen reported that that 188 inmate phone calls to attorneys had been recorded and later downloaded so that a law enforcement officer or government attorney could listen to them. Or, he wrote, they could have been downloaded in response to a subpoena.

Those included 54 calls marked “private” that should not have been available, according to the policies of the prison and its telephone contractor, Securus Technologies.

Cohen wrote that it was unclear why those calls were recorded. He suggested further investigation of that question and other topics, including the after-hours entry of a federal prosecutor into the judge’s chambers.

Robinson described numerous instances of U.S. Attorney Erin Tomasic and other prosecutors withholding information or giving contradictory answers to questions. Federal public defenders all along have pushed for a wider investigation, arguing that their clients’ rights have been violated in ways that prosecutors have not admitted.

“There has been a long-simmering culture of distrust occasioned by the proprietorial practices of several prosecutors in the Kansas City, Kansas, division” of the U.S. Attorney’s Office, Robinson wrote.

The key impetus for the wider investigation came when the special master requested that prosecutors deliver all hard drives containing the recordings, and prosecutors responded that the one computer used to play the recordings had been “wiped clean” — erasing information about which recordings were played, by whom, and when.

“This critical evidence has been destroyed despite the court’s order,” Robinson wrote.

“Our office has been cooperating with the special master all along — and we intend to continue doing so,” U.S. Attorney Tom Beall in an emailed statement to The Associated Press. “That said, while this matter is pending before the court, it would be inappropriate for us to make further comment.”

Federal Public Defender Melody Brannon said in an email that the court’s order speaks for itself, and her office will continue to cooperate with the special master’s investigation.

In the new investigation, the judge orders the special master to investigate how prosecutors and federal agents obtained the recordings, whether they watched them, gave them to other parties, used them in grand juries or litigation, or to interfere with attorney-client relationships and to identify inmates and attorneys who could have been recorded.

If the court finds that the government engaged in misconduct, Robinson wrote, or has violated the inmates’ Sixth Amendment rights, the court may issue a remedial order. The judge has previously said the outcome could affect the underlying contraband case.

The order provides $350,000 to fund the investigation.

The Associated Press contributed to this report.