WICHITA, Kan. — A federal judge expanded an investigation Wednesday into prison recordings of attorney-client conversations to focus on the government’s conduct in the wake of the destruction of “critical evidence” on a computer — despite an earlier court order to preserve all hard drives at the U.S. attorney’s office in Kansas City, Kansas.
U.S. District Judge Julie Robinson ordered a special master to investigate the conduct of federal prosecutors and staff, citing the government’s lack of transparency about its possession, knowledge and use of recordings. She said she found that prosecutors have made inconsistent, inaccurate or misleading statements.
“There has been a long-simmering culture of distrust occasioned by the prosecutorial practices of several prosecutors in the Kansas City, Kansas division of the USAO,” Robinson wrote.
The court last year appointed special master David Cohen, an Ohio attorney, to investigate recordings at the Correction Corp. of America prison in Leavenworth after defense attorneys voiced concern the government had obtained what were supposed to be private conversations between inmates and attorneys.
The investigation initially examined the video-only recordings in attorney-client meeting rooms at the prison as well as the practice of recording telephone calls from inmates to attorneys, sometimes even when the attorney had previously designated his phone numbers as private in the prison phone system.
“Our office has been cooperating with the special master all along — and we intend to continue doing so,” U.S. Attorney Tom Beall in an emailed statement. “That said, while this matter is pending before the court, it would be inappropriate for us to make further comment.”
Federal Public Defender Melody Brannon said in an email that the court’s order speaks for itself, and her office will continue to cooperate with the special master’s investigation.
Robinson’s ruling expands Cohen’s investigation to focus now on the government’s conduct, and authorizes up to $350,000 to be paid from the court clerk’s office for this phase.
Specifically, the judge directed him to investigate the government’s knowledge and intent as well as examine how the government obtained the prison recordings and whether it listened, watched or used them.
Robinson wrote there is “a good-faith basis for suspicion and concern” that the government has viewed and may have used the prison recordings of attorney-client conversations in cases.
Her ruling also reveals that the hard drive of the one computer used to play video recordings was wiped clean despite the court’s earlier order to preserve all hard drives for computers assigned to attorneys and staff in the U.S. attorney’s office in Kansas City, Kansas.
After his appointment, the special master requested the government produce all the hard drives for inspection and analysis. The government responded it was able to produce all except for the very computer used to play video recordings. Its hard drive had been wiped clean. This precluded the special master from examining the one computer that could have provided meta data and other information, Robinson noted.
“This critical evidence has been destroyed despite the Court’s order,” Robinson wrote, adding while the court has no evidence that this happened intentionally or inadvertently the fact it happened serves as another basis for the investigation.
Another factor is the government’s posture that some of the recordings are not privileged attorney-client communications, the judge said. Prosecutors contend inmates waive confidentiality because they hear a pre-recorded warning that calls are monitored.
Robinson also was troubled that between 2012 and 2016, the government obtained more than 700 calls on the prison phone system from inmates to attorneys, including 188 calls to designated private attorney numbers.
“In the Court’s view, the defense bar’s negative perceptions are not unfounded with respect to the practices of some, and probably a minority, of prosecutors,” Robinson wrote.