Mimesis Law
19 February 2019

Inquiry Launched After Massive 6th Amendment Violation By Kansas US Attorney

August 18, 2016 (Fault Lines) — An investigation into allegations of contraband smuggling at CCA Leavenworth, a Kansas pretrial detention center, has now exploded into a massive case involving potentially “hundreds of Sixth Amendment violations,” according to United States District Court Judge Julie Robinson.  Now a Special Master will investigate the scope and breadth of numerous recordings of attorney-client conversations through video and telephone at Leavenworth, and determine what future action must be taken to remedy these violations.

It started when federal prosecutors contacted Jacquelyn Rokusek*, a private attorney, regarding a related case and told her video evidence existed of a potential conflict of interest that would require her withdrawal.  Rokusek examined the video and others, which spanned “a ten month period from July 2015 to April 2016,” then contacted the Federal Public Defender’s office over the recordings. This did not sit well with Melody Brannon, head of the Kansas Federal Public Defender’s office. She filed a Rule 41(g) motion, asking for the return of any and all recordings of attorney-client communications, and an emergency hearing was set for August 9, 2016.

“When we go to CCA, every attorney that meets there had an expectation of privacy,” [Brannon] told the court. “We expected those meetings with our clients were confidential. We expected that those meetings with our clients were private. That’s always how it has been, that’s what we understood from CCA and that was in fact not the case.”

The August 9 hearing, according to a source requesting confidentiality for fear of retaliation by the U.S. Attorney’s Office, was “standing room only” as members of the defense bar, prosecutors, and inmates free on bond listened to evidence of what was termed a “systemic culture of corruption” in the Kansas U.S. Attorney’s office. Brannon termed the government’s approach to the alleged Sixth Amendment violations “brazen and derisive” during a subsequent hearing on August 16.

The existence of recorded conversations on video between attorneys and clients was enough that on August 10, Judge Robinson issued an order directing the government to turn over any and all recordings “in the possession of the United State’s Attorney’s Office for the District of Kansas or in the possession of law enforcement agents.”  The August 10 Order also directed all detention facilities in Kansas and Missouri immediately cease and desist any recording of attorney-client communications, whether video, telephone, or videoconferencing.  Each facility had to submit written confirmation of their compliance with this Order as well.

One person who thought Judge Robinson’s Order a little too broad in scope is Jonathan Burns, a CCA spokesperson, who said on August 12th that CCA was in total compliance with the Order.  Only video was recorded, and that was to maintain safety for attorneys, inmates, and the facility as a whole. He was quick to deny any sort of audio recordings existed at CCA Leavenworth, or any of their other facilities.

“We do not record inmate/attorney telephone conversations at Leavenworth or any other CCA facility,” [Burns] said.

Unfortunately for Burns, Melody Brannon presented evidence on the 9th that CCA Leavenworth recorded phone calls placed by inmates to their attorneys unless the inmate explicitly informed CCA Leavenworth they were placing calls to their counsel. The scope of the recordings, enough to span “200 feature films,” constituted enough evidence for Judge Robinson to appoint a Special Master to investigate the issues at CCA Leavenworth and other facilities in Kansas and Missouri.  We won’t know until September just how large the Special Master’s inquiry will be, and both sides are in contention over that issue.

“Quite frankly, we don’t agree that every meeting in the (lawyers’) visiting rooms is privileged,” [Assistant U.S. Attorney Debra Barnett] told Robinson.

The U.S. Attorney’s office in Kansas denies any wrongdoing, stating they “would not knowingly seek to obtain privileged attorney-client information,” according to spokesman Jim Cross.  This lack of clarity leaves several questions up in the air, including just whether the Kansas U.S. Attorney’s Office understands what constitutes “attorney-client privilege,” and when that privilege is waived. There’s several ways to start an inquiry into this issue, and none of them are going to turn out pretty for the government or CCA.

First, the Special Master needs to impound the subpoenaed information to mitigate any damage to pending cases. Second, the Special Master must determine the scope and breadth of CCA’s recordings and whether they were regularly turned over to the U.S. Attorney’s Office, or if CCA just hands over their recordings of privileged information to the government on subpoena.

Finally, there must be a determination over whether Erin Tomasic, the prosecutor who signed the subpoena, and Kim Flanniagan, her supervisor, acted alone in this matter or whether this is standard operating procedure for Kansas’ U.S. Attorney’s Office.  Punitive measures would be nice as well, but Fault Lines’ source didn’t seem to see any coming on the horizon.

“It’s hard enough as is to punish prosecutorial misconduct. I don’t see OPR** doing anything in this case, and it’s almost impossible to punish an AUSA,” said the source. “I walked away from a [six figure] per year salary there, the corruption’s so bad.”

Something needs to happen, and punitive measures taken against the federal prosecutors in Kansas who either participated in this incident, knew about it, or should have known. The attorney-client privilege is sacrosanct. It’s what gives clients the ability to speak to defense attorneys without fear of disclosure, punishment or retaliation for tell the truth.  If outside parties are recording that information and turning it over to prosecutors, it constitutes a massive violation of not just ethical duties, but also a defendant’s rights under the Sixth Amendment.  Using the information to influence another attorney to withdraw from a criminal case, even if related, would violate Rule 6(e) of the Federal Rules of Criminal Procedure, which prohibits disclosure of information before a grand jury absent very strict exceptions.

All eyes now rest on Kansas and the Special Master’s inquiry. Regardless of the circumstances, it’s hard not to hear the words of Johnny Cash echoing through Kansas federal courts.

Well you may throw your rock and hide your hand
Workin’ in the dark against your fellow man
But as sure as God made black and white
What’s done in the dark will be brought to the light

*Calls to Ms. Rokusek and Ms. Brannon were not returned as of publication.

**OPR is the Office of Professional Responsibility, the wing of the Department of Justice that oversees misconduct from its officials.

8 Comments on this post.

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  • Matthew Cline
    18 August 2016 at 11:09 am - Reply

    “regarding a related case and told her video evidence existed of a potential conflict of interest that would require her withdrawal.”

    Is there any way besides lip-reading that a no-audio video could show evidence of conflict of interest?

    • CLS
      18 August 2016 at 12:07 pm - Reply

      Your guess is as good as mine, but it’s still material used outside a grand jury proceeding for something that doesn’t fit the exemptions of Fed. R. Crim. P. 6(e).

  • Matthew Cline
    18 August 2016 at 11:11 am - Reply

    “would not knowingly seek to obtain privileged attorney-client information,”

    The wording leaves open the interpretation that if they *accidentally* obtain privileged info that they’ll be happy to use it.

    • CLS
      18 August 2016 at 12:08 pm - Reply

      You said it. I didn’t.

  • Wrongway
    18 August 2016 at 9:36 pm - Reply

    Is it possible to not be surprised & outraged at the same time ??

    • CLS
      19 August 2016 at 11:00 am - Reply

      Anything’s possible these days. Except putting your elbow in your mouth.

  • losingtrader
    18 August 2016 at 11:54 pm - Reply

    Chris, do you think has anything to do with Justice’s decision to eliminate privately-run federal prisons?

  • One Year In The Blawgosphere – Mediation is Dead
    24 August 2016 at 6:44 pm - Reply

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