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Government Refuses to Follow Federal Court’s Discovery Order After Being Caught Recording Attorney Meetings with Prisoners at Leavenworth

Judge Julie Robinson issued her first ruling in March 2017 for the U.S. District Court for the District of Kansas after a special master she had appointed found that as many as 700 attorney visits with LDC detainees may have been secretly recorded by prison phone contractor Securus Technologies and illegally shared with federal prosecutors by officials at Corrections Corporation of America. (See PLN, May 2017, p.36)

The pretrial detention center is still operated for the federal Bureau of Prisons (BOP) by the firm, rebranded in 2017 as CoreCivic. It is the nation’s second-largest private prison operator, with 2019 revenues of nearly $2 billion.

After the recordings were brought to light in 2016 by the Federal Public Defender’s Office in Kansas City, some of the LDC detainees who were victims had their charges reduced and were released. Some federal prosecutors who used the recordings to obtain convictions were also fired, including Assistant U.S. Attorney Erin Tomasic, who knowingly used the recordings to secure convictions. She was terminated in May 2017.

Yet the government now says in its latest filing that it will not follow Judge Robinson’s July 27, 2020, discovery order, requiring it to turn over all of the recordings, because to do so would be “both unreasonable and contrary to law.”

“The United States already has provided voluminous and extensive discovery to date and will not produce any further discovery in these related cases,” the government’s filing proclaimed.

Though it acknowledged its refusal placed it in contempt of court, the government further argued that the court should deny all motions filed by the defendants challenging their convictions possibly tainted by the government’s misconduct. It claims it has already dedicated hundreds of hours to comply with the court’s order and spent more money than it usually budgets for discovery — around $300,000 — to produce 20,000 documents.

The government also argued that the defendants challenging their convictions have pleaded guilty and therefore “there are no ‘wrongful convictions’ here in terms of an innocent person being convicted.” Because many of the defendants had received favorable plea deals, the government said “these [convictions] hardly seem the stuff of wrongful convictions or unfair sentence,” citing some cases where it dismissed “stacked” firearm charges that would have required decades in prison had the defendants not pleaded guilty.

Adding that there is not “a shred of evidence that any prosecutor intruded on the attorney-client relationship” of any of the defendants, the government pointed to its “affirmative evidence” contradicting the defendant’s claims: “Sworn affidavits from prosecutors that they did not view videos of or listen to calls of attorney-client communications in the course of prosecuting the [defendant’s] underlying criminal case.”

In a last-ditch effort, the government called the discovery motion a “fishing expedition” and said there was “no evidence that anyone on the prosecution teams improperly viewed, listened to, or used any recordings of petitioners’ attorney-client meetings.” But it still refuses to open its files to prove what it argues.

Not only did the government argue that the court’s discovery order would waste its time and money but also that it “flies in the face of logic and supportable legal argument” and “defies reality.” Therefore, “the United States cannot and will not produce any further discovery in these related cases,” it said. See In re CCA Recordings, 2255 Litigation, No. 2:19-CV-02491 (D. Kan. Aug. 20, 2020).

In issuing the discovery order, Judge Robinson — who was a prosecutor before being appointed to the federal bench — said “the burden and expense to the government is not disproportionally high, particularly given the litigation affects a significant constitutional right” — that is, a defendant’s Sixth Amendment right to the assistance of counsel in his defense against the government’s charges.

She added that the office of U.S. Attorney for Kansas Stephen R. McAllister “should have sought support from the [Department of Justice, or DOJ] earlier,” adding that it’s “past time for the vast resources of the DOJ to be tapped in support of this significant litigation.”

The case now heads for a resolution of the impasse to the 10th Circuit U.S. Court of Appeals, based in Denver.

In August 2020, the attorneys that the government admits it spied on settled with CoreCivic and Securus Technologies for $3.7 million. The two firms had previously agreed in August 2019 to pay $1.45 million to more than 500 affected detainees in order to settle a separate lawsuit. (See PLN, January 2021, p. 56] 


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