The federal public defender’s office has asked for the release of 67 inmates from a Kansas federal prison and plans to seek freedom for more than 150 others because authorities secretly recorded conversations between prisoners and their attorneys that are supposed to be private.
Most of the federal inmates are being held on drug or firearms-related cases.
The practice first came to light in a prison contraband case during which criminal defense lawyers discovered the privately run Leavenworth Detention Center was routinely recording meetings and phone conversations between attorneys and clients, which are confidential under the Sixth Amendment to the Constitution. A court-appointed expert was brought in to independently investigate whether prosecutors had improperly listened to the recordings.
The court expanded the responsibilities of the federal public defender’s office to represent any inmate in Kansas who may have been affected by the prison recording.
At least one Texas woman has been released early because a former prosecutor listened to recorded phone calls with her attorney. Michelle Reulet , 37, had been serving a five-year sentence for mail fraud and was not due for release until September 2020. She was freed last month.
The Ethics Bureau at Yale wrote in a friend-of-the-court brief this week that the intrusion into the attorney-client relationship violates the Sixth Amendment by endangering the ability of a lawyer to represent a client, erodes the right to counsel, and undercuts public trust in the legal system.
“The government’s intrusion into the attorney-client relationship and subsequent failure to disclose its possession of privileged materials transgresses the foundational principle of attorney-client confidentiality. ... Fairness and the integrity of the adversarial process demand that this Court condemn the large-scale erosion of the principles at the heart of our profession and our justice system,” the group argued.
U.S. District Judge Julie Robinson will hear arguments Friday in Kansas City, Kansas, on Federal Public Defender Melody Brannon’s motion to have the government declared in contempt for its conduct during the special master’s investigation. She also wants the government to pay the legal costs as a sanction.
Prosecutors rejected her arguments.
“To the extent that the (federal public defender’s) present motion can be read to suggest government wrongdoing, the government denies such allegations,” wrote Assistant U.S. Attorney Steven Clymer.
The Justice Department has argued that there is no evidence the recordings at the prison were done for reasons other than “legitimate security considerations,” but did not elaborate on that point further.
Also at issue Friday is whether former and current prosecutors testified truthfully at an earlier hearing , whether the government knew it had recordings of attorney-client conversations, and whether prosecutors properly disclosed evidence.
Brannon first raised the issue of potential contempt last year when she accused the U.S. attorney’s office in Kansas of destroying evidence. She alleged the government wiped clean the hard drive on the one computer in the U.S. attorney’s office dedicated to playing videos from the prison after the court had ordered the government to turn over all hard drives.
The government denied the accusation, saying that the software upgrade happened before the court order.