A federal judge in a scathing order this week held the U.S. Attorney’s Office in Kansas in contempt of court for its pattern of misrepresentations, obfuscation and lack of cooperation during an investigation into a growing scandal.
A ruling by U.S. District Court of Kansas Judge Julie Robinson late Tuesday capped a three-year probe that examined the extent to which federal prosecutors in Kansas had accessed recordings of confidential phone calls and meetings between defense attorneys and their clients at a private prison in Leavenworth.
Conversations between clients and their attorneys are confidential in nearly all aspects. Robinson found that federal prosecutors in Kansas determined on their own that they could access recordings of these discussions, tainting several criminal cases along the way.
At least three criminal defendants in Kansas have had their sentences vacated or their indictments dismissed as a result of the scandal. More than a hundred others have filed petitions for similar relief.
“The Government’s wholesale strategy to delay, diffuse, and deflect succeeded in denying the individual litigants their day in court for almost three years,” Robinson wrote as part of a 188-page ruling.
Jim Cross, a spokesman for the U.S. Attorney’s Office in Kansas, said the office is evaluating Robinson’s findings and cannot comment further.
The U.S. Department of Justice also declined to comment.
Robinson ordered the U.S. Attorney’s Office to pay attorneys fees and the costs associated with delays caused in the case by the conduct of various federal prosecutors. That amount is yet to be determined.
“The court’s order speaks for itself and clearly so,” said federal public defender Melody Brannon.
Robinson’s order is the latest black eye for the U.S. Attorney’s Office in Kansas, which had been tainted by claims of prosecutorial misconduct and internal dysfunction.
“They were appalling, reprehensible,” said Carlos Moran, a Kentucky criminal defense attorney who had his conversations with a client in Kansas reviewed by prosecutors. “I can see that in the Soviet Union during the Cold War and things like that but I never expected that in a federal court.”
Moran’s client, Juan Antonio Herrera-Zamora, was convicted on drug trafficking and firearms charges and sentenced to 35 years in prison.
But that sentence was reduced to time served as a result of the U.S. Attorney’s Office’s misconduct and Herrera-Zamora was released from prison in March 2018, according to U.S. Bureau of Prison records.
The U.S. Attorney scandal came to light in 2016 during the prosecution of inmates suspected of trafficking drugs within the walls of a private prison in Leavenworth operated by Corrections Corporation of America, now CoreCivic.
A federal grand jury in Kansas indicted six suspects in May 2016.
During a hearing the following month, Erin Tomasic, an assistant U.S. attorney on the case, disclosed that she had possession of surveillance video from within the prison, including video from inside rooms where attorneys can meet with their clients.
That admission caught the ear of federal public defenders, who claimed that video from inside attorney visitation rooms would intrude into confidential communications with their clients.
Soon after, several defense attorneys throughout Kansas began to suspect that their discussions with clients were in the possession of federal prosecutors.
Robinson held a hearing and appointed a special master as an outside investigator to review the possibility and extent that defendants had their rights infringed.
Special Master David Cohen said that in his years of practice he had never been involved in a case with such broad accusations of prosecutorial misconduct.
“The investigation actually led to I think acknowledgment in part, in small part, from the United States Attorney’s Office that something’s wrong and something had gone wrong and people had done things that were not appropriate,” Cohen told The Star by phone Wednesday.
Cohen said he is allowing his investigation and the judge’s ruling of contempt to speak for themselves. He said he found Robinson’s ruling to be thorough and prudent.
“I give (the judge) a lot of credit for facing difficult issues and grappling with them and coming to prudent conclusions,” he said.
The investigation discovered that federal prosecutors sought to obtain and, in some instances, intentionally listened to, recorded phone conversations between inmates and their attorneys.
The investigation turned up handwritten notes kept by one assistant U.S. attorney, Tanya Treadway, that showed she listened to phone calls between Michelle Reulet, a Texas woman who was charged with mail fraud, and her various defense attorneys.
“The notes include discussions about defense trial strategy, plea negotiations, risk-benefit assessment of trial versus plea, and estimates of the sentence Reulet faced,” Robinson wrote.
Melanie Morgan, one of Reulet’s attorneys, testified during the investigation about how Treadway appeared to know what Reulet wanted from a plea negotiation -- namely the opportunity to regain custody of her child before her co-defendant husband could, according to Robinson’s ruling.
Treadway offered Reulet a plea deal that would have Reulet finish her prison term before her husband, according to court documents.
Treadway told a federal judge during a hearing that she hadn’t listened to any of Reulet’s conversations with counsel, a denial that Robinson called a lie when notes of the conversations surfaced during the investigation.
Reulet’s sentence was later vacated by a judge as a result of Treadway’s conduct.
Treadway retired from the U.S. Attorney’s office. Tomasic, whose eavesdropping was implicated in two cases, was terminated, according to Robinson’s ruling.
Tomasic provided testimony that gave an insight into how U.S. Attorneys came to believe that listening to the phone calls was appropriate.
In general, conversations between attorneys and clients is a sacrosanct privilege. One exception is if those talks are divulged to someone outside of the attorney-client relationship.
At the Leavenworth prison, most calls by inmates are recorded, a common practice in prisons and jails. In Leavenworth, if an inmate is calling an attorney, they had to go through a process to keep those talks private. Even so, many of the calls were still recorded.
Tomasic testified that the matter was discussed among other assistant U.S. attorneys, usually during lunch breaks, and the consensus was that if the calls were recorded, then the inmate and their attorney had waived their privilege to keep their discussions secret.
Tomasic said the general feeling among her colleagues was: “If the defense attorney is stupid enough to make a call on a recorded line, then that’s on them and you have no obligation to alert them.”
She said she “left that discussion thinking that phone calls were fair game.”
Robinson’s ruling took the U.S. Attorney’s Office to task for their interpretation of the rules, as well as their failure to further investigate the proper manner of handling attorney-client recordings.
“To me, to say that an attorney who received a phone call from a client who is in jail waives the attorney-client relationship, I don’t know where they got that from,” said Moran, the defense attorney for Herrera-Zamora. “I don’t know what constitution they were reading.”
Robinson’s ruling also examined prosecutors’ attitude toward defendants and the dysfunction within the office.
She cited one former office employee’s view that “the culture in the Kansas City office was to treat the defense bar as the enemy” and another top prosecutor’s testimony that “she repeatedly received complaints from the defense bar about abusive treatment by the Kansas City prosecutors.”
At various times, employees described an “inmates-run-the-jail” or a “Lord of the Flies” atmosphere in the office, one example being that internal phone calls were recorded and emails were printed and brought home because prosecutors in the office didn’t trust one another.
BEHIND OUR REPORTING
Why we did this story
The Star has been covering the investigation into the phone call recordings at the Leavenworth Detention Center since 2016. Since then, the newspaper has published numerous stories on important hearings and reports. From the beginning, the judge in the case signaled that the constitutional rights of many people could be at stake.
How we did this story
For months, Star reporters have been digging into documents in the case, including the testimony of former prosecutors in the U.S. Attorney’s Office, and interviewing people close to the investigation. When the judge’s decision was released Tuesday, The Star based its report on the decision, related documents, and on-the-record comments of people involved in the investigation.
Finding of contempt
The U.S. Attorney’s Office, Robinson said in her filing, deliberately deprived the Special Master, David Cohen, and the Federal Public Defenders of evidence.
“The government decided to engage in a minimal superficial attempt at preservation of materials with full knowledge that information could be lost.”
During the investigation, she said, the federal government allowed a hardrive to be wiped that held evidence of what attorney-client video had been viewed by prosecutors.
Additionally, she said, the government ignored a court order to place a hold on all evidence related to the investigation.
The government first, she said, took a very narrow view of the order presented in August 2016 by only holding information directly related to the Lorenzo Black probe, as opposed to all evidence and emails potentially related to attorney client calls.
When the order was clarified with another order from the Special Master in October 2016, the ruling says, the US Attorney’s Office simply ignored the directive.
Cohen testified in October 2018 that he was under the impression that his order was immediately taken.
“(Assistant U.S. Attorney Emily) Metzger misled and lulled the Special Master into believing that she had implemented a full preservation hold on all repositories of information,” the ruling said.
The office did not issue a directive to employees to place a hold on their emails and evidence until December 2016. Even then, Robinson said, the office did not enforce that directive.
As a result, the ruling said, key evidence was irretrievably lost.
“The government’s misrepresentations, delays and lack of transparency about the state of its preservation efforts in this matter make it impossible to conclude with certainty what information has been lost and cannot be restored,” the ruling said.
Those losses impact more than 100 incarcerated people who have filed to have evidence returned to them or their sentences reduced as a result of the government’s conduct.
The evidence that was lost, Robinson said, would have been key for those inmates to prove whether or not the government listened to their calls.
The government will be required to pay attorney’s fees and costs related to the delay it caused. Both the U.S. Attorney’s Office and the Federal Public Defender’s office were asked to file briefs proposing a total amount.
In the last year, 110 petitions have been filed by inmates who think their confidential attorney-client communication was accessed by federal prosecutors.
The petitioners are seeking relief based on Sixth Amendment violations and prosecutorial misconduct.
The Federal Public Defenders began filing these petitions after the Department of Justice, via former Assistant Attorney General Rod Rosenstein, rejected a deal reached between the FPD and the U.S. Attorney’s Office to create a formula to reduce sentences of those affected.
“The Department of Justice cannot approve blanket sentencing reductions absent evidence of particularized harm,” Rosenstein said in a letter to the office. “Criminal sentences must be based on an individualized evaluation of the facts relevant to each defendant.”
Despite the promise to negotiate with public defenders to find remedy in individual cases, the filing says, the government has fought every petitioner thus far.
“The Government has raised the defenses of collateral waiver and procedural default in every response filed, asking the Court to dismiss on procedural grounds rather than reach the merits of whether each litigant has a valid claim under the Sixth Amendment,” the ruling said.
Those procedural arguments were rejected by Robinson in a separate ruling Tuesday in the criminal case against Petsamai Phommaseng, setting a precedent for the court to use moving forward.
After Tuesday’s ruling the 110 petitions will be consolidated and reassigned to Chief Magistrate Judge James O’Hara.
The cases will be “triaged” and the court will determine how to efficiently decide the common issues between them.
Those issues include the procedural arguments filed by the government, threshold privilege determinations, whether the audio recordings waived privilege, and whether the government had good cause for obtaining them.
Although Robinson said in her ruling that Sixth Amendment violations must be determined on an individual basis, she made broad rulings regarding the arguments made by the U.S. Attorney’s Office.
Throughout litigation, the U.S. Attorney’s Office argued that they requested phone call and video in large batches in order to ensure they didn’t miss anything and had access to as much information as possible.
Robinson said that reason does not constitute “legitimate purpose” for accessing the calls, because they had prior knowledge those requests would likely include confidential attorney-client communication.
The ruling said that in these cases the prosecutors made no attempt to limit their access by submitting more specific subpoenas that would avoid such communication.
Since the calls and video themselves are no longer available, Robinson said, affidavits from defense council will be sufficient to determine the nature of calls and whether they fall under the umbrella of protected communication.
Furthermore, Robinson said, the government’s argument that the calls were not privileged in the first place because of information provided to inmates about call privatization and messages informing callers that the conversation “may be recorded” was illegitimate.
“The mere fact that CCA warned detainees in various ways that their calls would be subject to recording and monitoring is not enough, standing alone, to waive the privilege given the many other facts in the record that detainees and their attorneys were led to believe these warnings did not apply to them,” Robinson said.
According to court documents, attorneys who had clients incarcerated in the Leavenworth CoreCivic detention center had to follow a specific procedure in order to ensure calls to and from their number would not be recorded.
However, the ruling said, many attorneys and inmates were not told about this procedure by the jail. Therefore, some attorneys told their clients that calls were private when they were not.
Even those attorneys who had privatized their phone numbers would have some of their calls recorded, because CCA employees regularly failed to properly privatize numbers.
In some individual cases, Robinson said, prosecutors may be able to prove that an inmate voluntarily waived their attorney-client privilege.
The Star’s Bryan Lowry contributed to this report.