According to a court-appointed investigator, Leavenworth Correctional Facility (Leavenworth), illegally recorded hundreds of private attorney-client protected conversations. The alleged recordings could possibly put hundreds of convictions and plea deals between the state and certain inmates into question. Additionally, the U.S. Attorney’s office in Kansas, as well as the privately funded prison, may face sanctions and charges.
Every attorney who practices criminal law (although it applies in civil cases as well) knows that any and all communication with their client is sacred. In fact, the attorney-client privilege has been deeply embedded within the legal profession since its inception. All U.S. states protect attorney-client communications, with a few minor differences. This is because, without this protection, the quality of legal advice and representation would suffer as clients would be discouraged from making full disclosure to their legal representatives, for fear of having their statements used against them. This would make competent legal representation incredibly difficult. However, at least one prison in Kansas has put this privilege into severe jeopardy.
According to The Daily Beast, Attorney Jackie Rokusek was informed by the Kansas U.S. Attorney’s office last summer that they had videotape of her providing her client with confidential information concerning a drug ring case. If true, the revealing of the information would jeopardize the entire case. Therefore, Rokusek was invited to the prosecutor’s office to view the videotape on a state-issued computer. While the computer was in her possession, Rokusek claims she accidentally clicked on another file during her search for the video. The opened file revealed a video of another attorney meeting with their client at Leavenworth. Rokusek, fully comprehending the attorney-client privilege rules, was aghast at what she found. She immediately took this information to the Federal Public Defender’s office.
Rokusek’s revelation set off a lengthy investigation into Leavenworth’s attorney-inmate meeting recording practices, this includes video and phone calls. Furthermore, the investigation included Kansas’s U.S. Attorneys Office use of any recordings from Leavenworth. Kansas District Court Judge Julie Robinson, appointed an independent investigator, David Cohen to scrutinize the matter. Cohen spoke to hundreds of Leavenworth workers, private defense attorneys, and individuals at the U.S. Attorney’s Office. Plus, he gathered physical evidence such as digital videos and computer hard drives. The results of the investigation were made public and submitted to a federal court on Monday, March 28th.
According to CJ Online over 700 attorneys are believed to have been recorded without their knowledge or permission. Additionally, 227 phone call recordings and at least 30 videos of attorney-client meetings have been discovered in the U.S. Attorney’s Office in Kansas City. The U.S. Attorney’s Office obtained the recordings of the conversations with the help of the private-prison company that runs Leavenworth, CoreCivic, and the company that provides communications services there, Securus Technologies. What’s intriguing and telling, is that both companies have been sued several times in the past for violating the constitutional rights of inmates by recording calls between them and their attorneys.
The head of security for CoreCivic was questioned by an investigator with the Federal Public Defender’s office about the situation. He told the investigator that the cameras in the meetings rooms did not record attorney-client conversations. However, when pressed the company eventually admitted that it had been recording attorney’s conversations at Leavenworth, and storing those videos for 30 days, since 2008. The length of time in which these recordings have taken place and which lawyers and inmates they have recorded is significant. Theoretically, any lawyer who has been captured on one of these videos may be able to petition the courts for a mistrial or a revocation of a plea deal. This is because there is no way to know what the U.S. attorneys used it to their advantage while viewing the videos.
As of right now, the U.S. Attorney’s office is denying any wrong doing. The U.S. Attorney’s Office has said “no employee of the United States Attorney’s Office or law enforcement officer” has viewed any recording provided by CCA. “I made a very serious mistake … but I want the court to know I did not intend to gain that footage,” Assistant U.S. Attorney Erin Tomasic, the head lawyer in the case involving Rokusek, said in September. However, defense attorneys in the Kansas area are not happy or satisfied. Melody Brannon, a federal public defender for Kansas, is requesting that the investigation to be expanded to include more information.
“Specifically, the defense asks the special master to determine the policy and practice of the Kansas (U.S. Attorney’s Office) in obtaining, reviewing and disseminating attorney-client communications, regardless of whether the USAO classified the communication as privileged or not,”
Brannon told The Daily Beast. On the other hand, assistant U.S. Attorney Debra Barnett argues Brannon hasn’t offered any evidence warranting an expanded investigation.
The disclosure by the investigator as well as the accompanying media coverage doesn’t just end with the Kansas prison. The situation opens up discussions concerning ethics used by prosecutors, the business practices of private prisons and the potential recording of attorney conversations in different states.