Prosecutors Object To Paying For Special Master In Leavenworth Prison Recordings Case

Oct 28, 2016

Prosecutors say a judge overstepped her bounds when she ordered them to pay the costs of a special master appointed to examine recordings of attorney-client meetings at the pretrial detention facility in Leavenworth.
Credit Redbull Trinker / Creative Commons-Flickr

Federal prosecutors are disputing a judge’s order directing the Justice Department to bear the costs of a special master who is examining whether recordings of attorney-client meetings at the Leavenworth Detention Center were illegal.

In a court filing late Thursday, prosecutors argued that the government can’t be forced to pay the special master’s expenses over its objection; the level of financial contribution is “disproportionate, unreasonable and excessive;" and the criminal case in which he was appointed is not the place to address the policies and practices of the private company that operates the detention center, Corrections Corporations of America.

Earlier this month, U.S. District Judge Julie Robinson appointed David Cohen, a Cleveland attorney, as a special master to investigate whether and to what extent the pretrial detention facility had turned over video and audio recordings of attorney-client meetings to the U.S. Attorney’s office in Kansas.

The issue arose in a wide-ranging criminal case in which inmates and corrections officers stand accused of distributing drugs and contraband within the walls of the pretrial detention facility.

Prosecutors insist they did not deliberately seek recordings of attorney-client meetings but inadvertently acquired them when they sought surveillance video of inmates’ activities.

In any case, they say, they did not view any of the privileged material and will forgo their use in the criminal case.

Criminal defense lawyers, however, have expressed skepticism about the government’s intentions and pushed for a wide-ranging probe into what happened.

The Federal Public Defender’s office sought an emergency hearing in August after it learned that its meetings with clients might have been recorded and then turned over to prosecutors. Since then, it has been at odds with prosecutors over the proper scope of the special master’s duties.

The U.S. Attorney’s office initially wanted the scope limited to excising and retaining privileged attorney-client matters. The Public Defender sought a more far-reaching examination of whether CCA routinely recorded attorney-client meetings and turned them over to prosecutors.

In her order appointing Cohen, Robinson left open the possibility of just such a wide-ranging examination. For now, however, she has limited the special master’s duties to the feasibility of isolating the privileged information, excising and retaining it, and providing the government and defense attorneys in the case with the remaining materials.

Cohen is among a small number of attorneys nationwide who specialize in doing work as special masters, neutral third parties who work at the pleasure of, and answer to, the judges who appoint them. They typically are appointed in complex civil cases such as mass tort, antitrust and patent litigation.

Although it’s not unheard of, they are rarely appointed in criminal cases. In their motion, prosecutors argued that Congress had “not clearly and unequivocally waived sovereign immunity” in assessing costs in criminal cases and therefore Robinson exceeded her authority in ordering the government to pay for them.

Cohen charges $500 an hour, and the U.S. Attorney’s motion estimates it would take 450 hours just to spot check one DVR containing the recordings at issue, at a  cost to the government $1.35 million. But even if the judge’s $500,000 initial estimate of the cost of a special master were correct, the motion states, that’s more than 120 percent of the amount set aside for litigation expenses this year for the U.S. Attorney’s office in Kansas.

The motion goes on to say that prosecutors will not seek to use any of the video materials in the case and only “a very limited group of non-privileged audio telephone recordings.”

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