Judge In Missouri Orders Detention Centers To Stop Recording Attorney-Client Meetings

Aug 19, 2016

Fallout from the disclosure that the pretrial detention center in Leavenworth had been recording attorney-client meetings and phone calls has now spread beyond Kansas.

The Federal Public Defender’s office in Kansas City, Missouri, recently sought to have one of its clients released from detention as a result of the apparent breach of attorney-client privilege.

A judge denied the request, but ordered that all facilities housing detainees charged in the Western District of Missouri stop recording meetings, video-conferences and phone calls between attorneys and their clients, unless authorized in advance by a federal judicial officer.

U.S. District Judge Stephen Bough issued the order after both the Federal Public Defender and U.S. Attorney’s office in Kansas City agreed to its adoption.

Laine Cardarella, who heads the Federal Public Defender’s office in Kansas City, said she was pleased with the order and confident the U.S. Marshals Service, which is responsible for the custody of federal prisoners, would comply with it.

Cardarella said there was no indication that the U.S. Attorney’s office in Kansas City, in contrast to its counterpart in Kansas City, Kansas, had obtained recordings of meetings or phone calls between attorneys and their clients.

The issue has caused an uproar among criminal defense lawyers. It first surfaced when the Federal Public Defender’s office in KCK learned earlier this month that the operator of the pretrial detention center in Leavenworth -- Corrections Corporation of America -- had been video-recording meetings between lawyers and inmates in rooms reserved for such visits. It later discovered that the detention center had been recording phone calls between attorneys and their clients since 2011.

The U.S. Attorney’s office in KCK subpoenaed recordings at CCA Leavenworth as part of its discovery in a far-reaching case over the alleged distribution of methamphetamine and other contraband within the facility. It’s not clear if federal prosecutors were aware that the subpoenaed recordings included videos, albeit without sound, of meetings between inmates and their attorneys. But in at least one instance, they used them to try to get a defense attorney to withdraw from representing her client.

The issue exploded into the open 10 days ago at an emergency hearing requested by the Federal Public Defender in KCK. The hearing led U.S. District Judge Julie Robinson to order CCA to stop recording attorney-client meetings and phone calls and to announce that she would appoint an independent third party, or special master, to look into the matter.

CCA, the largest private prison contractor in the country, operates dozens of prisons and jails under contract with the U.S. Marshals Service, the Federal Bureau of Prisons, Immigration and Customs Enforcement, and states and counties. What remains unclear is whether the company recorded attorney-client meetings and phone calls at facilities other than the one it operates in Leavenworth.

CCA uses cameras to monitor its facilities for security purposes. Until now, however, criminal defense lawyers say they were unaware their meetings and phone calls were being recorded.

Judge Bough’s order allows CCA to continue its monitoring activities but, like Robinson’s order, bars it from recording confidential meetings between inmates and their lawyers – including the lawyers’ investigators, experts and support staff.

The U.S. Justice Department this week announced plans to phase out its use of private prison contractors like CCA. It cited findings by the department’s inspector general that privately run prisons had more incidents of inmate contraband, assaults and uses of force than facilities run by the Federal Bureau of Prisons. The department’s decision, however, will not affect most inmates, who are housed in state and local facilities.   

Dan Margolies, editor of the Heartland Health Monitor team, is based at KCUR. You can reach him on Twitter @DanMargolies.