Evidence backup in recorded attorney-client calls case delays end of federal hearing

Even as he questioned a witness in court Thursday, Kirk Redmond of the federal public defender’s office in Kansas was trying to read a document about the witness he had just received.

That document was among a voluminous mountain of evidence that Redmond’s office was supposed to have been given months ago in a contentious hearing that has dragged on for two years.

But now, because that evidence is still trickling in after two weeks of trial, the case will have to continue at least a little while longer.

And federal prosecutors, who have been ordered to turn over that evidence, can’t say how long it will be before everything has been provided.

As a result, U.S. District Judge Julie Robinson said Thursday that she will hold an additional hearing later this year.

“I don’t intend to hold another trial,” she said.

Robinson is presiding over the case that could affect dozens of defendants whose conversations with their lawyers were recorded and then obtained by prosecutors.

The case centers around phone conversations and video-taped meetings between lawyers and their clients housed at a privately-run Leavenworth Detention Center that were obtained by prosecutors in the U.S. Attorney’s Office in Kansas City, Kan. Attorney-client phone calls and meetings are protected from law enforcement by the Sixth Amendment.

Attorneys for the inmates allege that their clients’ constitutional rights were violated at the facility operated by CoreCivic, formerly Corrections Corporation of America.

The three-sided litigation involves the U.S. Attorney’s Office, the Federal Public Defender’s Office and a Special Master appointed by Robinson to investigate the case.

The defender’s office is asking Robinson to find prosecutors in contempt of court because of the delay in turning over evidence to the defense and the Special Master.

Steven Clymer, the attorney handling the case for the Department of Justice, said that prosecutors have done the best they can “with the massive amount of data” that must be reviewed before it’s released.

During the hearing over the past two weeks, witnesses described how inmate phone calls at the facility are recorded and come with a warning message that they are subject to monitoring and recording.

Prosecutors said they would sometimes request those recordings while preparing for trial in case defendants were discussing details of their alleged crimes.

The facility had a mechanism set up so calls made to or from attorneys could be weeded out from the recordings.

But as the hearing showed, the technology was not fool-proof and Federal Public Defender Melody Brannon said prosecutors took advantage of that situation and obtained hundreds of what should have been protected conversations.

Brannon called it a “pervasive and long-standing” practice.

According to testimony, some in the federal prosecutor’s office took the warning heard on the facility’s telephone lines to mean a waiver of the attorney-client privilege, according to testimony.

Erin Tomasic, a former special assistant U.S. attorney in the Kansas City, Kan., office who is at the center of the controversy, testified that she sought advice from her superior and others in her office when she first encountered receiving an attorney-client recording.

Tomasic said she had received no training on what to do in that situation.

“No one in the office thought the calls are privileged because of the warning recording,” she testified.

She said she discussed it during lunch with other attorneys in the office who were of the opinion that if a defense attorney was “stupid enough” to make calls on a recorded line they were “fair game.”

Later, Tomasic obtained recordings in one case and listened to them. Carlos Moran, the attorney representing the inmate in that case, testified that he was unaware of the recorded warning .

Carlos Moran said he expected the calls to be confidential. Other defense attorneys testified that had heard the recorded warning, but still believed their conversations with clients would remain confidential.

When the case went to trial, Moran said he suspected prosecutors had been listening to calls with his client based on some of the tactics they used at trial.

After his client in the drug-trafficking case was convicted and sentenced to 38 years in prison, Moran said he filed a motion with the court addressing the concerns he had about the attorney-client violation.

But after Tomasic insisted that she had not done that, Moran said he believed her and withdrew the motion.

But later, when it was learned that she had listened to the recordings, prosecutors allowed his client to plead guilty to a reduced charge. He was sentenced to time served and deported to Mexico, Moran testified.

During the hearing this month, prosecutors acknowledged what Tomasic had done, but said it was an isolated incident.

Clymer told the judge that when the U.S. Attorney’s Office first learned of issues involving recordings, it “acted quickly and properly to prevent any problems from occurring.”

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