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After reading all 188 pages of Judge Julie Robinson’s opinion addressing how prosecutors have dealt with the multi-year attorney-client phone/visit-recording scandal in Kansas, it is astonishing that the US Attorney’s Office in Kansas continues to employ so many of the prosecutors whom the court rightfully and methodically ripped to pieces. One is left to wonder if Kansas’s US Attorney ought to simply shutter the doors of the Kansas City office altogether, given its disdain for judicial oversight, constitutional rights, and even DOJ policy. Judge Robinson’s painstaking and dispassionate review of what transpired in the case leaves no doubt that the Government did all that it could to thwart a meaningful investigation into its own misconduct, obstruct the truth of its misdeeds, and obtain untold advantages in hundreds or possibly thousands of criminal cases. Many lessons lurk in what may be the least-discussed system-wide prosecutorial scandal of the year.  

The Kansas City Star, the only media outlet that appears to providing consistent, rigorous coverage of the scandal, provides this snapshot:

A federal judge in a scathing order this week held the U.S. Attorney’s Office in Kansas in contempt of court for its pattern of misrepresentations, obfuscation and lack of cooperation during an investigation into a growing scandal.

A ruling by U.S. District Court of Kansas Judge Julie Robinson late Tuesday capped a three-year probe that examined the extent to which federal prosecutors in Kansas had accessed recordings of confidential phone calls and meetings between defense attorneys and their clients at a private prison in Leavenworth.

Three years ago, it was made public that prosecutors—working with Corrections Corporation of American (CCA) (since renamed CoreCivic in Orwellian fashion), the company that runs the detention center in Leavenworth, Kansas—made use of video-footage that CCA collected of detainees meeting with their lawyers at that facility. The investigation that this disclosure triggered soon uncovered evidence that the prosecutors had also been gaining access to recorded phone calls that detainees had with their lawyers, all handily saved by Securus Technologies, Inc. It should sound odd that prosecutors would enjoy a front-row seat to ostensibly private, privileged communications between attorneys and their clients. Such snooping violates the most basic tenants of an adversarial criminal justice system, rendering it little more than an autocracy.  

Some of the more notable aspects of the scandal can be summarized as follows:

  • First, this was not the product of a few bad apples. Many prosecutors were responsible, but finger-pointing abounded: management blamed the Kansas City office; individuals in the Kansas City office blamed a prosecutor that was fired in the middle of the investigation; Government lawyers from other parts of the country provided unfounded legal justifications for what transpired. Long story short, this is what a prosecutorial culture obsessed with winning looks like. When times are good, it breaks the rules without breaking a sweat and celebrates its exercise of power. And, in those rare times when the law is brought to bear against those unethical impulses, it resists accountability in every conceivable way. It drags its feet, it raises pathetic legal defenses, it lies to special masters and judges, and it throws everybody it can under the bus.  
  • Second, this was not just a Kansas problem. Sure, the fiasco began there. But, before it was over, a special prosecutor from New York came in and really turned on the obstruction afterburners. Even Rod Rosenstein made an appearance, refusing to agree to blanket relief for the defendants whose cases were compromised. Indeed, this case epitomizes just how willing prosecutors are to make unsupported and even laughable arguments in an effort to evade accountability.    
  • Third, this case demonstrates that ethical rot does not typically confine itself to one area but afflicts the entire structure. The rampant violations of the attorney-client privilege were not the only ethical violations perpetrated by the federal prosecutors in Kansas. They could not be trusted to comply with other rules, namely, their Brady obligations. When prosecutors regularly adopt the most restrictive or obtuse interpretations of their obligations, the results are no accident. Which is exactly why prosecutorial self-policing makes so little sense. 
  • Fourth, the cover-up can be as bad as the crime itself. When a party behaves the way the prosecution did in this case, the judge is right to lose all faith. Too often, however, powerful allegations of misconduct get swiped aside because judges are willing to assume that prosecutors do not systematically defile the rules but instead make occasional mistakes. Perhaps the best lesson from Judge Robinson’s opinion is that judges everywhere should be thinking about prosecutorial credibility across cases. Cordoning off allegations in separate cases makes it too easy to see an instance of misconduct as isolated or harmless. But, when confronted with misconduct on the scale of a scandal like this one, the truth cannot be so easily ignored.
  • Finally, this scandal is not simply about a law enforcement agency abusing its power. Kansas prosecutors relied upon and worked with private companies to produce this injustice. CCA video-recorded many of the attorney-client visiting rooms at Leavenworth, and made those recordings available to the prosecutors. And, Securus similarly recorded calls between attorneys and their clients and passed them along to prosecutors without blinking. If prosecutors did not already have a considerable advantage in terms of access and resources, corporations have basically joined with law enforcement to expand dramatically the reach of prosecutorial power. 

The Opinion

With that context in mind, we turn to the opinion. It is a doozy, and well worth a look. Here are its most critical findings.

The Government obstructed and continues to obstruct the investigation

Even in the face of incontrovertible proof that some of its prosecutors improperly used the recordings and failed to notify defendants, the Government obstructed the investigation. At page 4 of the opinion:

[T]he Government evaded the Court’s questions, and denied that its practices implicated the Sixth Amendment or the attorney-client privilege.  The Court ultimately appointed Special Master David Cohen to investigate.  The Government did not cooperate with his investigation, and its failure to cooperate ultimately resulted in a lengthy delay in this Court’s ability to rule on these issues.

The Government obstructed the investigation by failing to preserve recordings and data that the special master specifically requested be held for litigation. Despite the clearly-articulated need to preserve evidence, AUSA Emily Metzger “misled and lulled the Special Master into believing that she had implemented a full preservation hold on all repositories of information.” It turns out, that did not happen in any sort of timely fashion.

Moreover, to the extent that the Government has actually turned over the evidence that has been ordered, it has done so in a manner most likely to confuse the recipients and obfuscate the origins.

Audio recordings of attorney-client calls obtained by the USAO continue to be produced in August 2019, almost three years after the investigation began.  Evidence likely has been lost due to the Government’s failure to timely implement a meaningful litigation hold.  And the Government’s productions to the Special Master and FPD were incomplete and turned over in a manner designed to mask the individual source of production.

Such efforts to thwart judicial oversight continue today:

The Government’s wholesale strategy to delay, diffuse, and deflect succeeded in denying the individual litigants their day in court for almost three years.  The strategy continues today, and can be found in the Government’s proposed findings of fact and conclusions of law, where it contends that most detainees’ communications with their attorneys are not protected, and that the USAO was correct in unilaterally determining that it had a right to access such information.

It is worth noting that a special prosecutor from New York named Steven Clymer came to represent the Kansas US Attorney’s Office before the special master and, with gusto, clamped down on any effort to cooperate with the judicially-instigated investigation.

Management knew it had a problem with at least some of the prosecutors in the Kansas City office, yet delayed search and production of any active AUSA’s repositories until Clymer took over.  Then, under his direction, management defied the Court’s orders and directives, continued to fail to preserve such that years of documents were potentially lost, and then only produced what they chose to produce.

All this obfuscation raises the question: what is the Government trying to hide?

Assistant US Attorneys Listened to Recordings, Failed to Disclose the Evidence, and Lied to Judges

If there were any questions about what a prosecutor could gain by listening in on conversations between a criminal defendant and her lawyer, let now-retired federal prosecutor Tanya Treadway show you the way.

It is undisputed that Treadway listened to and took extensive notes of Reulet’s conversations with [several different defense lawyers] as they discussed the criminal case, the pending bond revocation litigation, the DUI case, and the child custody case, all of which had overlapping issues. Treadway’s notes of these conversations comprised 106 pages of a legal pad.

It is interesting that, when called to account for her actions, Treadway came up with many contradictory explanations, including that the calls were unimportant. 106 pages of notes beg to differ. Judge Robinson made clear that the “handwritten notes prepared by Treadway . . . is not only direct evidence that Treadway knowingly listened to attorney-client phone recordings, it is evidence that Treadway lied to United States District Judge Daniel Crabtree about whether she had listened to [a defendant’s] attorney-client phone calls.”

Another former prosecutor, Erin Tomasic, listened in on calls in several of her cases. In fact, she was fired from her job because of it. (That firing, in the context of the broader scandal, looked more like an effort to characterize her as a ‘bad apple’.) The opinion explains:

Sara Gardner, a contract interpreter, testified that Tomasic asked her to listen to and translate the recordings. Gardner stated that Tomasic also asked her to come to the USAO during trial to listen to and provide oral summaries of conversations between Herrera-Zamora and [the defense lawyer] to learn defense strategy and so Tomasic and [co-counsel] Zabel could impeach the defendant should he testify in his defense. Gardner was so alarmed by this request that she informed AUSA Catania, who reported Gardner’s concerns to Metzger. On May 10, 2017, Tomasic informed Rask that she had listened to a call or calls between [the lawyer] and his client.  The USAO terminated Tomasic shortly thereafter.  The USAO did not bring Tomasic’s May 10, 2017 admission to the attention of the Court and parties in Black until June 19, 2017, when it filed a Motion of Correction of Record.  After Tomasic’s misconduct came to light, the USAO agreed to recommend that the court vacate Herrera-Zamora’s 420-month sentence and impose instead a sentence of time served.

But, importantly, Tomasic was not some rogue prosecutor. Judge Robinson’s opinion—and the testimony of some senior Assistant US Attorneys—suggest that she was a young lawyer who responded to the encouragement of her coworkers when she adopted the approach she took to attorney-client recordings. The culture in the Kansas City office denigrated the ethical concerns she initially raised. The court found much of her testimony credible, in part because it was actually corroborated (which is more than can be said about the testimony of other prosecutors who apparently still work for the US Attorney).

Tomasic testified that whenever she shared with the lunchroom group the advice she received from [senior lawyers in other offices and the DOJ’s Professional Responsibility Advisory Office], the group roundly dismissed the advice as wrong, telling her that calls placed by detainees at CCA to their attorneys were not privileged because they were on notice that the call was recorded because of the recorded preamble.

In another matter, as part of an investigation concerning a purported conspiracy by detainees to distribute controlled substances within the Leavenworth facility, prosecutors Tomasic and Kim Flannigan met with a defense lawyer and threatened to charge her with obstruction for allegedly giving her client a document from another case. They told the defense lawyer that one of their agents was reviewing video footage of her meetings with that client. This threat tipped the lawyer off that CCA was improperly recording her client interviews, and provided important information to those investigating the recording scandal. It also resulted in a series of escalating lies by the prosecutors. Judge Robinson found that “[n]one” of the prosecutors’ testimony about this matter was credible.

While a handful of the AUSAs have been implicated directly thus far, the court noted that “[t]he USAO’s surreptitious practice of collecting and saving, but not disclosing, attorney-client calls allowed the practice to perpetuate for years.” Dozens more likely abused the information they had available. Unfortunately, the numbers and the names of those violators remain unknown, in large part because the prosecutors failed to preserve evidence about who accessed specific files. Yet, it’s hard to imagine that any prosecutors remained unaware of the recording scheme:  

For years, prosecutors in the Kansas City division had received, or knew others had received, attorney-client calls when they made a general request for all of a detainee’s calls from CCA.  The prosecutors’ exposure to attorney-client calls was neither infrequent nor uncommon.  The individual cases set forth above illustrate prosecutors’ knowledge that attorney-client calls were available from CCA and instances where prosecutors listened to those calls.  There was no written policy in the USAO at the time that prevented or discouraged this practice.

To get a sense of the scope of the scandal, consider the evidence presented to the court. According to whatever little information was available (because of the Government’s malfeasance), it is likely that the CCA recorded some 700 attorney-client visits in just a twelve-week period in 2016. According to another estimate based on the limited evidence the Government ultimately supplied, around 1,500 calls were likely accessed by the US Attorney’s office between 2010 and 2017.

As for the concrete harm done, it is difficult to measure, but it is deep. Blatant violations of attorney-client privilege undermine the very foundations of the adversarial system. In the case in which AUSA Treadway listened in on attorney-client calls and took 106 pages of notes, she was able to identify what the defendant cared about most in her plea negotiations and maximized the Government’s leverage accordingly. It is like a football team breaking into the opponent’s locker room and stealing the playbook and signals; it is cheating. Moreover, one can imagine the prosecution not just obtaining a strategic advantage in plea negotiations or at trial, but also in the investigation itself. A client very well may point his lawyer toward exculpatory evidence during a meeting. An unethical prosecutor hell-bent on getting a conviction could jump on that lead, and find ways to make favorable witnesses or defendant-friendly evidence disappear. The troubling possibilities are endless.       

Culture of Misconduct in the Kansas US Attorney’s Office

The recording scandal does not represent an isolated example of misconduct or simple misunderstanding about ethical doctrine. Indeed, as the court put it, “the USAO’s pattern of similar misconduct in other cases is relevant to the Court’s determination of witness credibility on the issue of access to the recordings.” Judge Robinson was familiar with the misconduct committed by Terra Morehead, who threatened that she would make trouble for a witness if he testified on behalf of another defendant in a different case. Although the remedy Judge Robinson provided to the defendant in that particular case was overturned, the findings pertaining to the prosecutor’s misconduct remain. Morehead’s behavior over the years is sufficient to raise questions about what was going on in the office.

There is also some suggestion that prosecutors in the Kansas US Attorney’s office took similarly unethical approaches to the disclosure of other types of evidence. Judge Robinson wrote that “[i]n fact, this narrow definition of ‘use’ governed prosecutors’ disclosure of other types of discovery, including Brady and Giglio materials.” That’s another way of saying that the Kansas AUSAs likely violated their disclosure duties on a regular basis.

It is not entirely clear whether all of the prosecutorial misconduct that has been uncovered in Kansas is the product of intentional deceit. Another possible explanation is stupidity. Plain bad lawyering could explain how, with respect to the recording scandal, “this unilateral determination that the recorded calls were conditioned on a knowing waiver of attorney-client confidentiality was made without factual support or accurate legal analysis.” Whatever the cause—bad intent, ineptitude, or some combination— the cover-up efforts after the fact are damning of the office’s culture.

Barry Grissom, who was the US Attorney during much of the relevant time period, is now coming under scrutiny. He recently announced that he is running for Senate as a member of the Democratic party. In light of this recent ruling, difficult questions will follow him, and could derail his campaign. 

The current US Attorney, Stephen McAllister, also has some big decisions to make. It will be interesting to see whether his office takes an appeal and challenges Judge Robinson’s careful findings. An appeal is likely to add more fuel to the court’s observation that the office is obstructing at every turn. A change in approach—even acceptance of some responsibility—may be the smart move. The only way to turn a ship around is to actually turn the ship around. Now is as good a time as any to restore some semblance of respectability to the office. McAllister also faces very big personnel questions. If he seeks to meaningfully change the undignified culture that the court identified, he ought to replace those prosecutors who readily engaged in and covered-up the misconduct.

What now?

We end with a simple observation: this case is a big deal. While aspects of it remind us of other smaller cases—like a recent one in Delaware in which prosecutors took attorney-client information out of a defendant’s prison cell—it bears a more striking resemblance to the massive scandals that have rocked Orange County and the Attorney General in Massachusetts in recent years. As in those cases, the judiciary appears reluctant to adopt a global remedy. But, if the prosecution continues to mislead, delay, and frustrate, the US Attorney’s office may lose more than just face. Credibility matters. In Kansas, federal prosecutors have almost none of it left.

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