Did Kansas feds improperly listen to calls? 85 times, prosecutor wouldn't tell judge

Leavenworth Detention Center
Leavenworth Detention Center File photo The Associated Press

An assistant U.S. attorney, testifying in federal court about whether federal prosecutors improperly listened to attorney-client phone calls, gave the same response 85 times on Tuesday.

"I'm not authorized to answer the question."

Scott Rask, a supervisor in the Kansas City, Kan., office of the U.S. Attorney for Kansas, repeated the statement under the direction of U.S. Department of Justice officials, according to court testimony.

He was one of the witnesses called Tuesday in a U.S. District Court hearing concerning the motives and actions of federal prosecutors in accessing phone calls between defense attorneys and their clients incarcerated at the Leavenworth Detention Center.

A special master's investigation of the federal prosecutors' use of the phone calls also concerns video recordings of meetings between lawyers and their clients at the facility, which were revealed during a contraband investigation. Attorney-client phone calls and meetings are protected from law enforcement by the Sixth Amendment.

In advising Rask and some other witnesses not to answer certain questions Tuesday, federal prosecutors cited so-called Touhy regulations, which hold that the head of a federal agency has sole authority to decide whether to authorize a federal employee's testimony in response to a subpoena.

Defense attorney Cynthia Dodge, who represents a client involved in the underlying contraband case, objected that Rask answered some questions but not others while federal prosecutors gave no explanation.

"I find it inconsistent and I don't think the government can create laws and use them to deflect from, or shield, their unclean hands," Dodge said.

U.S. District Judge Julie Robinson said she could not compel the witnesses to testify when the Touhy rules were invoked.

But while Rask in many cases did not provide answers, the questions told their own story.

Federal public defenders, along with the special master appointed to investigate the case, asked dozens of questions about which prosecutors listened to attorney-client phone calls and whether supervisors directed staff to not cooperate with the resulting investigation.

Still more questions concerned complaints of "poor management" in the U.S. Attorney's Kansas City, Kan., office, where another federal prosecutor, Terra Morehead, recently lost a drug case when the court ruled she had committed misconduct by threatening a witness.

In addition to two recently uncovered cases in which a prosecutor listened to attorney-client phone calls, Rask said he could remember three to five previous such incidents, though he did not provide details.

Former federal prosecutor Erin Tomasic also testified Tuesday, one year after she left the job amid revelations that she had listened to attorney-client phone calls at the prison.

Tomasic, who had been a special assistant prosecutor in Kansas City, Kan., and is no longer a Department of Justice employee, also declined to answer some questions on advice of Department of Justice officials.

But she did answer some questions about how she came to be blamed for her after-hours entry into the chambers of Judge Robinson.

At the time, the incident left Tomasic under a cloud of suspicion. While she explained she was only there to deliver evidence to the judge, her bosses at the prosecutor's office did nothing to vouch for, or explain, her actions. Prosecutors announced that Tomasic had left the office in May 2017.

On Tuesday, Tomasic broke into tears as she testified that her superiors had instructed her to enter the judge's chambers to deliver evidence. Her testimony was supported by emails exchanged among attorneys Debra Barnett, Emily Metzger and Kim Flannigan, and others.

She testified that upper management did not clear her name, even when Tom Beall, then the acting U.S. Attorney for Kansas, was alerted to the situation.

Tomasic is expected to be called as a witness again on Wednesday as the hearing continues.

The investigation of the federal prosecutors stemmed from an earlier criminal investigation of contraband in the privately-run prison, which is operated by CoreCivic Inc., formerly known as Corrections Corporation of America. The company operates the facility under contract for the U.S. Marshals Service.

After information came out that inmate-attorney phone calls had been recorded, defense attorneys filed a legal action to determine if there was a violation of their clients' Sixth Amendment rights.

Robinson appointed David Cohen, a lawyer from Cleveland, as a special master to investigate the situation.

Cohen reported 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.

As part of his investigation, Cohen asked federal prosecutors to provide him with computer hard drives containing the recordings.

Prosecutors responded by saying that the one computer used to play the recordings had been “wiped clean” — erasing information about which recordings were played, by whom, and when.

A wider investigation of the federal prosecutors in the Kansas City, Kan., office was limited in February by the federal U.S. Court of Appeals 10th Circuit, which directed Judge Robinson to confine the inquiry to those involved in the contraband case.

Ian Cummings: 816-234-4633, @Ian__Cummings