Prosecutors Ordered To Turn Over Grand Jury Materials In Probe Of Attorney-Client Recordings

Nov 7, 2017

The judge's order came after the federal prosecutors said they would no longer cooperate with the special master investigating the tapings.
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A judge has ordered federal prosecutors to produce grand jury materials in an ongoing probe of the audio- and video-taping of attorney-client meetings at the Leavenworth Detention Center in Kansas.

U.S. District Judge Julie Robinson last year named a special master to conduct the investigation after criminal defense lawyers learned that some attorney-client conversations at the prison had been recorded. Such conversations are supposed to be off-limits to the government.

More recently, Robinson directed the special master, Cleveland attorney David R. Cohen, to look into whether federal prosecutors in Kansas obtained any of the recordings and listened to or viewed them.

In her order Tuesday, Robinson said that the circumstances of the government’s collection and use of attorney-client recordings, including whether their collection was intentional, “remains an open issue.”

She gave prosecutors until Nov. 21 to produce transcripts in which they requested a grand jury subpoena or reported the results of a subpoena to the grand jury.

Defense lawyers first learned of the recordings in the course of an ongoing drug smuggling case at the Leavenworth prison, which is run by a private company, CoreCivic (former Corrections Corporation of America).

Prosecutors maintain they never intentionally sought the recordings and have made no use of them. But Robinson noted that prosecutors issued grand jury subpoenas for the recordings and a now-former prosecutor testified that the government “had a good-faith basis to believe” they contained attorney-client meetings when those subpoenas were issued.

Robinson ruled in response to a motion filed by the Federal Public Defender in Kansas and after prosecutors said they would no longer cooperate with Cohen's investigation. The public defender had made a sweeping request for grand jury materials, but Robinson limited her order to the subpoenas or the reports of their results. 

Grand jury proceedings are typically enshrouded in secrecy, but courts have the power to order disclosure of grand jury materials in certain situations.

Dan Margolies is a senior reporter and editor for KCUR. You can reach him on Twitter @DanMargolies.