The federal public defender’s office has asked for the release of 67 inmates from the federal prison at Leavenworth and plans to seek freedom for more than 150 others because authorities secretly recorded conversations between prisoners and their attorneys that are supposed to be private.

Most of the federal inmates are being held on drug or firearms-related cases.

The practice first came to light in a prison contraband case during which criminal defense lawyers discovered the privately run Leavenworth Detention Center was routinely recording meetings and phone conversations between attorneys and clients, which are confidential under the Sixth Amendment to the Constitution. A court-appointed expert was brought in to independently investigate whether prosecutors had improperly listened to the recordings.

The court expanded the responsibilities of the federal public defender’s office to represent any inmate in Kansas who may have been affected by the prison recording.

At least one Texas woman has been released early because a former prosecutor listened to recorded phone calls with her attorney. Michelle Reulet , 37, had been serving a five-year sentence for mail fraud and was not due for release until September 2020. She was freed last month.

ETHICS

The Ethics Bureau at Yale wrote in a friend-of-the-court brief this week that the intrusion into the attorney-client relationship violates the Sixth Amendment by endangering the ability of a lawyer to represent a client, erodes the right to counsel, and undercuts public trust in the legal system.

“The government’s intrusion into the attorney-client relationship and subsequent failure to disclose its possession of privileged materials transgresses the foundational principle of attorney-client confidentiality. … Fairness and the integrity of the adversarial process demand that this Court condemn the large-scale erosion of the principles at the heart of our profession and our justice system,” the group argued.

GETTING ANSWERS

U.S. District Judge Julie Robinson heard arguments Nov. 16 in Kansas City, Kansas, on Federal Public Defender Melody Brannon’s motion to have the government declared in contempt for its conduct during the special master’s investigation. She also wants the government to pay the legal costs as a sanction.

Judge Robinson did not indicate Friday when she would issue a ruling on the motion.

Prosecutors rejected her arguments.

“To the extent that the (federal public defender’s) present motion can be read to suggest government wrongdoing, the government denies such allegations,” wrote Assistant U.S. Attorney Steven Clymer.

The Justice Department has argued that there is no evidence the recordings at the prison were done for reasons other than “legitimate security considerations,” but did not elaborate on that point further.

DID FEDS LIE?

Also at issue was whether former and current prosecutors testified truthfully at an earlier hearing, whether the government knew it had recordings of attorney-client conversations, and whether prosecutors properly disclosed evidence.

Brannon first raised the issue of potential contempt last year when she accused the U.S. attorney’s office in Kansas of destroying evidence. She alleged the government wiped clean the hard drive on the one computer in the U.S. attorney’s office dedicated to playing videos from the prison after the court had ordered the government to turn over all hard drives.

The government denied the accusation, saying that the software upgrade happened before the court order.

DID PROSECUTORS STALL INVESTIGATION?

A court-appointed attorney investigating whether federal prosecutors improperly listened to recorded conversations between prisoners and their attorneys testified Nov. 16 that he was stunned and disappointed when he realized months into the investigation that the U.S. Attorney’s Office was not cooperating with him.

David Cohen, an Ohio attorney who’d been appointed by U.S. District Judge Robinson to investigate the matter, said he believed federal prosecutors were working to identify attorneys in the office who might have listened to the recordings made at Leavenworth Detention Center.

He said he wanted any attorneys involved to voluntarily speak to him and optimistically believed the investigation, which started in October 2016, could wrap up by early 2017.

Instead, it took months to get any documents from federal prosecutors and those documents provided little usable information. He also was surprised to learn that the office was seeking to recuse itself from the investigation and that at least one attorney had been told not to talk to him.

Early in the investigation, Cohen said he told Tom Beall, who was acting U.S. Attorney at the time, that there were problems in the federal prosecutor’s office in Kansas City, Kansas.

“I said since I was from out of town, I could be the bad guy and they could blame everything on me so we could fix things, and (Beall) could be the hero,” Cohen said. “That’s not what happened. I wasn’t given the tools to burn out the cancer. It’s a sad state of affairs that two years later the problems are still not fixed.”

FEDS STOPPED COOPERATING

The U.S. Attorney’s Office stopped cooperating with an investigation in October 2017 at the direction of Steven D. Clymer, a federal prosecutor in New York who was appointed to be the liaison with Cohen after the federal prosecutors’ office decided it had a legal conflict during the investigation.

In testimony earlier Friday, Beall insisted that his office had cooperated with Cohen and had not intentionally slowed the investigation or hidden information. He said the delay in providing requested information was due in part to his belief that he needed permission from the Department of Justice before responding to Cohen’s requests. And he said he didn’t want to commit the office to legal procedures while waiting for a new U.S. attorney to be named.

“Our effort to get things right governed (the delays),” Beall testified. “I would like to have moved faster but there was no deliberate attempt to slow walk the investigation.”

The Justice Department has argued that there is no evidence the recordings at the prison were done for reasons other than “legitimate security considerations,” but did not elaborate on that point further.

– MARGARET STAFFORD, Associated Press

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