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Kansas Federal Court Holds U.S. Attorney’s Office in Contempt

by Matt Clarke

On August 13, 2019, federal judge Julie Robinson issued a 188-page order holding the U.S. Attorney’s Office in Kansas in contempt of court for its pattern of misrepresentation, obfuscation and lack of cooperation during a three-year probe previously reported in PLN. [See: PLN, May 2019, p.14; May 2017, p.36].

The investigation attempted to determine the extent to which federal prosecutors obtained and used video and audio recordings of privileged meetings and phone calls between prisoners and their lawyers at a private prison operated by CoreCivic in Leavenworth. The U.S. Attorney’s Office was ordered to pay the costs associated with delays in the case.

This is the latest scandal to hit the Kansas U.S. Attorney’s Office, which has been previously accused of routine prosecutorial misconduct and internal dysfunction. One prisoner has already been released due to the breach of attorney-client privilege, and about 110 similar petitions from federal defendants are pending.

The prosecutors’ use of the recordings was revealed in 2016 during a court hearing associated with an investigation into drug trafficking at the CoreCivic-run prison. That is when former Assistant U.S. Attorney Erin Tomasic disclosed she was in possession of surveillance videos from over 100 cameras at the prison and audio recordings of more than 48,000 prisoner phone calls. They included video from inside five of the nine rooms used for attorney-client visits and audio of phone calls between attorneys and their clients. Federal prosecutors argued that the grand jury subpoena used to obtain the recordings had to be broad due to the large scope of the investigation.

During the probe, prosecutors first claimed they did not view or listen to any of the privileged communications. Then notes made by former Assistant U.S. Attorney Tanya Treadway turned up, which detailed communications between prisoner Michelle Reulet and her defense attorneys.

“The notes included discussions about defense strategy, plea negotiations, risk-benefit assessment of trial versus plea, and estimates of the sentence Reulet faced,” Judge Robinson wrote.

Before the notes were discovered, Treadway had testified that she never listened to any of the conversations between Reulet and her attorneys. But Melanie Morgan, one of Reulet’s lawyers, testified that Treadway seemed to know what Reulet wanted from a plea negotiation and offered her just that – an opportunity to be released from prison before her co-defendant husband, so she could regain custody of her child. Reulet’s sentence was later vacated.

Tomasic testified that the phone recordings were a lunchtime topic of discussion among prosecutors, and they came to a consensus that by allowing the recordings to be made, the prisoners and attorneys had waived privilege. Thus, she believed it was permissible to listen to them.

The government then tried to pin the blame on two “rouge” prosecutors, Treadway and Tomasic, now retired and fired, respectively. However, Judge Robinson held there was evidence of a “systematic practice of purposeful collection, retention and exploitation” of the privileged attorney-client phone calls. She also cited one prosecutor’s comment that “the culture at the Kansas City office was to treat the defense bar as an enemy.” Other employees described a “Lord-of-the-Flies” atmosphere where phone calls were recorded and emails printed and taken home because prosecutors distrusted one another.

Judge Robinson noted that the U.S. Attorney’s Office had ignored orders from the court and a special master to preserve evidence, and instead wiped a hard drive containing the videos. That will make it difficult for the prisoners challenging their sentences to prove their individual attorney-client meetings were recorded and viewed by prosecutors. An appeal of the district court’s contempt order remains pending. See: United States v. Carter, U.S.D.C. (D. Kan.), Case No. 2:16-cr-20032-JAR. 


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Related legal case

United States v. Carter