UNITED STATES ATTORNEY’S OFFICE FOR THE DISTRICT OF KANSAS APPEARS TO BE SO INSECURE ABOUT ITS PROSECUTORIAL SKILLS THAT CLANDESTINE SURVEILLANCE IS NECESSARY

A truly amazing and under-reported investigation of prosecutorial misconduct is unfolding in the U.S. District Court for the District of Kansas being handled by Chief U.S. District Judge Julia A. Robinson. Judge Robinson’s opinions rendered in United States v. Lorenzo Black, and other related criminal prosecutions pursued by the USAO for the District of Kansas (“USAO-KS”), span from November 29, 2016 to March 4, 2019 and the matter is not yet resolved. The entire mess spilled out into the open in August, 2016. Judge Robinson’s decisions are packed with factual information concerning revelations by the Federal Public Defender’s Office (“FPD”) and many other area criminal defense lawyers, to the effect that the federal detention facility operated at the time by Correction Corporation of America (“CCA”) in Leavenworth, KS permitted the surreptitious video recordings of attorney-client meetings in at least seven of the attorney conference rooms at the CCA facility and the recording of attorney-client telephone calls. Assuming these allegations are true, which evidence to date establishes these surreptitious recordings in fact occurred beginning as early as 2011, the professional damage likely to follow from a full investigation by a court-appointed Special Master should be career ending for the AUSA’s involved as well as participating correctional officials or other federal agents.

The Detention Center of Leavenworth, KS had been operated under contract with the CCA, now known as Core Civic. CCA is a private prison company that contracts with the U.S. Bureau of Prisons for the maintenance and operation of prison facilities that house federal prisoners. Based on reliable information obtained by the FPD’s office in Topeka, KS, Judge Robinson held emergency hearings in the Black case on August 9, 2016 which revealed the prospect that the USAO-KS came into possession of surreptitiously recorded video and audio recordings of attorney-client communications at CCA-Leavenworth. Evidence at the initial hearings was also presented that other detention facilities in Kansas and Missouri that house federal inmates charged in the District of Kansas also record phone, video and/or face-to-face communications between attorneys and their clients. The result of this hearing was the appointment of a Special Master, an attorney from Cleveland, OH, to initially identify privileged and confidential information contained within the unauthorized recordings and related materials submitted to Judge Robinson by the government and CCA, as well as to catalogue and organize the privileged and non-privileged information recorded. The Special Master was to file status reports as his work progressed.

Although circumstances may have begun in a more cooperative tone early on in this judicial investigation, the parties have since become far more adversarial as the Special Master reported his initial findings. In his report of March 16, 2017 for example, Judge Robinson found cause to direct the Special Master to conduct a more probing investigation of the involvement of certain AUSA’s from the USAO-KS in the possession and/or use of the video and/or audio recordings. The judge expressed grave concerns about government intrusion into attorney-client communications and the defendants’ Sixth Amendment rights. This is not to mention such a practice would violate many provisions of the Rules of Professional Conduct and let’s not forget that if such a practice was engaged in by defense counsel, it would be called obstruction of justice. Prevailing federal law holds that a prosecutor’s intentional intrusion into the attorney-client relationship constitutes a direct interference with the Sixth Amendment rights of a defendant. Such an intrusion constitutes a per se constitutional violation resulting in a presumed prejudicial effect on the reliability of the trial process. See e.g. Shillinger v. Haworth, 70 F.3d 1132, 1142 (10th Cir. 1995).

At the hearing held before Judge Robinson on May 17, 2017 authorizing the more probing investigation of the government’s role in this surveillance scheme, the judge wrote a lengthy 66-page opinion that includes a series of inexplicable actions by several AUSA’s involved in the Lorenzo Black case (and related cases), which defy logical explanation other than intentional and reckless misconduct by government prosecutors. United States v. Black, 2017 U.S. Dist. LEXIS 75497 (D. Kan. May 17, 2017). Some of the highlights of those findings are described below and should shock the judicial and public conscience of any knowledgeable participant in our federal criminal justice system:

1.As part of the early investigation, a grand jury issued a subpoena to CCA on March 28, 2016 for production of all inmate recorded telephone calls for 12 named inmates for the time period from July 1, 2014 until notice that the recordings are no longer needed. So far, CCA has produced audio recordings of calls dating back to 2011. These calls included attorney-client calls.

2.One of the AUSA’s assigned to the CCA investigation stated at the hearing that her management of the CCA investigation and her judgment was impaired by her lack of experience and exceptional family circumstances. This AUSA was the lead attorney for the government on the case; was aware that there were audio recordings of attorney-client conversations received from CCA; yet she took no steps to further investigate. The government has since taken the position that the audio recordings are not privileged. Judge Robinson has suggested otherwise. Judge Robinson has made no formal ruling on the privileged nature of these conversations and has directed the Special Master to investigate the government’s conduct concerning these recordings.

3.The government has denied listening to attorney-client phone calls but the judge has suspicions otherwise and has directed the Special Master to get to the bottom of the government’s use of the audio recordings before they were impounded by the court. In particular, the Special Master has been directed to investigate the intent of the USAO-KS’s prosecutors and staff as well as the investigative agents.

4.The Special Master has been directed to investigate how the government used the recordings, if at all. Were they used for investigative strategy, in charging decisions, in its posture on bond, or in defending defense motions? Was the recorded information used at trial, plea negotiations, or in any other way? The types of information the government may have had access to includes admissions, confessions, inculpatory and exculpatory evidence, defense witnesses, alibis, defense strategy, attorney advice, mental impressions, negotiating strategies and posture. In short, the potential prejudice to defendants is said to be incalculable and too numerous to catalogue.

5.Based upon the evidence available up to the May 17, 2017 hearing, Judge Robinson concluded that the government procured, viewed and used video recordings of an attorney-client meeting of at least one CCA inmate and possibly many more. Although no audio apparently accompanied the video, the court found that nonverbal communications between a defendant and his counsel still provide a wealth of useful information.

6.The government made inconsistent, inaccurate or misleading statements to the court about the video recordings. There was also evidence presented suggesting either an intentional or inadvertent destruction of evidence concerning the video recordings.

7.Recounting a lack of transparency by the government at the earlier hearings, the government failed to disclose the existence of video recordings and in fact the lead AUSA misled the court by describing the video equipment as capable only of monitoring the attorney-client conference room. Later as other facts were developed, the lead AUSA had knowledge of the nature of the video recordings including the fact that no less than seven attorney-client visitation rooms included video recording capability.

8.The lead AUSA on the CCA investigation received six hard drives of video recordings from CCA in response to a government subpoena, some of which clearly disclosed the videos included attorney-client conferences. This information was known by AUSA’s in the USAO-KS at the time of the earlier July 21, 2016 hearing, but none of these details were adequately revealed to the court. In fact, as of the May 17, 2017 hearing, the AUSA’s present could not even confirm whether the video equipment in the attorney-client rooms had recording capabilities.

9.One last development may clarify what is going on. When CCA turned over the six hard drives containing video recordings of the entire detention facility, the USAO-KS had to obtain special software to view the video recordings. The special software was downloaded on only one computer in the USAO, that of the litigation support specialist. If there was viewing of the video recordings by anyone in the USAO, it was done on this one computer. At the July 7, 2016 hearing, the government informed the court that the USAO intended to begin a cyclical replacement of all hard drives for personal and laptop computers for its attorneys and staff. Judge Robinson ordered that all attorney and staff computer hard drives be removed, labeled and preserved. Once the Special Master was appointed, he notified the USAO to produce those hard drives for inspection and analysis. The USAO responded by telling the Special Master that all hard drives were available except the one used by the litigation support specialist. What a surprise!

Summary

It appears the practice of surreptitious recording of audio and video content purloined from attorney-client communications at CCA-Leavenworth is widespread and has taken place for years. It is highly doubtful this outrageous practice has occurred only in Kansas. Based on past experience, the AUSA’s who knew about this practice and/or engaged in replaying the recordings for any purpose will likely not face any serious professional consequences. And, the band plays on.