Leavenworth Taping Disclosure: Prosecutor Listened To Attorney-Client Chats

Jun 20, 2017

After repeatedly denying that they had listened to attorney-client phone calls at the Leavenworth Detention Center, federal prosecutors now acknowledge that at least one prosecutor did and they have moved to correct the court record.

In a filing Monday with the federal court in Kansas City, Kansas, U.S. Attorney Tom Beall said that a one-time prosecutor in his office had, in fact, listened to recorded calls between a defendant in an amphetamine distribution case and the defendant’s attorney.

The prosecutor, Erin S. Tomasic, has been at the center of a burgeoning controversy over whether privileged attorney-client conversations were audio and videotaped at Leavenworth and whether prosecutors made use of information they obtained from those recordings.

Tomasic, whose title was special assistant U.S. attorney, is no longer with the office. It’s not clear whether her departure was related to the latest revelation in a controversy that prompted the judge to appoint an outside party to investigate.

In the filing Monday, Beall, joined by two other federal prosecutors, said he was providing notice to the court “to clarify and correct any prior representations that may be deemed potentially misleading due to the omission of this information.”   

Specifically, the filing noted that Tomasic on May 10 belatedly disclosed to her superiors that during the July 2016 trial of Juan Herrera-Zamora, she had listened to recorded calls made at Leavenworth and became aware she was listening to a conversation between Zamora, and his attorney, Carlos Moran. The filing says Tomasic told her superiors she listened to the recordings to learn whether Moran had contact with inmates at Leavenworth who could be potential defense witnesses in the case.

She told them the conversations were in Spanish and she was unable to understand much of what was said. She said she did not use any of the information she obtained from the calls at Herrera-Zamora’s trial, according to the filing.

A jury convicted Herrera-Zamora and he was sentenced to 35 years in prison. Herrera-Zamora has since appealed. Reached Tuesday, his court-appointed appellate attorney, Megan L. Hayes of Laramie, Wyoming, said she had just received the filing about Tomasic and plans to raise the matter on appeal.

“At the very least, he (Herrera-Zamora) has a habeus (corpus issue), and at another very least, I maybe should get this kicked back down so that the record can be developed on this issue before it comes up on appeal,” Hayes said.

Jim Cross, a spokesman for the U.S. Attorney’s Office in Kansas, said it would be inappropriate for the office to comment because a special master – the independent party appointed by the judge – is working on the matter.

Last October, U.S. District Judge Julie Robinson named David R. Cohen special master to investigate the scope of the video and audio taping of attorney-client meetings at Leavenworth and to report back to her.

More recently, Robinson directed Cohen, a Cleveland attorney, to look into the conduct of the U.S. Attorney’s Office in Kansas and various investigative agencies that may have had access to the recordings.

“There are grave concerns about government intrusion into attorney-client communications,” Robinson wrote in her order expanding the scope of Cohen’s investigation.

Before Tomasic disclosed to her superiors that she had listened to the conversation between Moran and Herrera-Zamora, Moran had asked prosecutors whether they had listened to any calls between him and his client. Based on what they knew at the time, they told him no.

In his filing, Beall said that in light of Tomasic’s disclosure, his office felt bound to correct the record “to ensure compliance with its professional responsibility obligations.”

The correction was filed not just in Herrera-Zamora’s case but in another one as well: United States of America v. Lorenzo Black et al, which involves alleged contraband smuggling within the walls of Leavenworth. The Black case is the one in which it was first disclosed that attorney-client conversations at Leavenworth may have been taped.

In his filing in that case, Beall says that Tomasic also disclosed that she listened to the recorded call of another defendant before a contested sentencing hearing. Tomasic told her supervisor that she was able to pick up on a conversation the defendant’s lawyer was having with the defendant’s mother.

Dan Margolies is KCUR’s health editor. You can reach him on Twitter @DanMargolies.