New Disclosure: Attorney-Client Phone Calls Were Recorded At Leavenworth Detention Center

Aug 16, 2016

New revelations emerged at a court hearing today that the private prison contractor operating a pretrial detention center in Leavenworth recorded phone conversations between attorneys and their clients and turned them over to federal prosecutors.  

The disclosures came atop revelations at a hearing last Tuesday that the contractor, Corrections Corporation of America (CCA), had made video recordings of meetings at the Leavenworth Detention Center between lawyers and their clients and turned those over to prosecutors.

The disclosures led U.S. District Judge Julie Robinson to announce in court today that she would appoint a special master, or independent third party, to investigate, although she said she had yet to determine the scope of the inquiry.

The latest revelations came during an extraordinary two-hour proceeding at which Melody Brannon, the head of the Federal Public Defender’s office in Kansas, accused federal prosecutors of taking a “derisive and dismissive” attitude toward what she termed “brazen” violations of the Constitution’s Sixth Amendment.

Pointing to the criminal defense lawyers who filled up a portion of the courtroom, Brannon said, “The lawyers here are here because they’re outraged.”

Brannon’s impassioned denunciation elicited an objection from Assistant U.S. Attorney Debra Barnett, who said Brannon was making allegations against her colleagues without proof. Judge Robinson, however, let Brannon continue.

Brannon told Robinson that communications between her office and the U.S. Attorney’s office had broken down and urged that as an additional reason to appoint a special master.

“The government doesn’t understand the gravity and magnitude of the issues,” she said, calling the government’s invasion of the privilege unprecedented.

Brannon also told the court that government prosecutors had made additional, unspecified threats against the private attorney who first disclosed that the government possessed privileged communications between attorneys and their clients. Robinson granted her request to present that information in the judge's chambers, so further details were not available.

Robinson said she would not issue her order appointing a special master until September and gave time to both sides to suggest what the scope of the special master’s inquiry should be. She said she was concerned about the costs of scrutinizing recorded materials that one filing in the case says amount to the length of 200 feature films.  

Robinson last week issued a sweeping order directing CCA to stop recording privileged meetings between attorneys and their clients. She said she had received an email from the U.S. Marshal stating that CCA had complied with the order. 

The government and Federal Public Defender are at odds not just about the scope of the special master’s inquiry but about what should be done with the recorded materials. The Public Defender says all recordings of attorney-client meetings should be impounded, but Barnett said the U.S. Attorney’s office was unwilling to go that far.

“Quite frankly, we don’t agree that every meeting in the (lawyers’) visiting rooms is privileged,” she told Robinson.

Brannon responded angrily, saying she was unable to understand why the government would not give up all video recordings of those meetings.

The issue threatens to swallow the case in which it has arisen, an alleged conspiracy among inmates, corrections officers and outsiders to distribute contraband within the walls of the Leavenworth Detention Center.

Seven defendants were charged in April, but the government has suggested that scores of other people may have been involved in the alleged conspiracy.

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