Kansas case seen as landmark of attorney-client privacy

AP News
|
Posted: Aug 16, 2016 7:32 PM

KANSAS CITY, Kan. (AP) — A federal judge on Tuesday said she will appoint an independent investigator to help her manage a complex case over prison recordings of lawyer conversations with clients that one public defender called an unprecedented violation of their right to privacy.

Last week, U.S. District Judge Julie Robinson ordered all detention facilities holding federal inmates in Kansas and Missouri to immediately stop recording attorney-client communications. She also ordered the government to submit to the court all originals and copies of recordings in its possession or in the possession of law enforcement agents.

The issue arose in a case over distribution of contraband at the Leavenworth Detention Center in which video recordings were subpoenaed by a grand jury. The Kansas federal public defender's office said it didn't know about the recordings until they were brought to its attention last week.

The recordings, which Corrections Corporation of America says are commonplace at detention facilities across the U.S., didn't contain audio and were for the safety of inmates, attorneys and the facility, the company said in a statement. The for-profit company manages prisons across the country.

At a hearing Tuesday, attorneys presented evidence that telephone conversations between lawyers and their clients also were being recorded by the company and some had been made available to attorneys in the contraband case.

Robinson asked the public defender's office and US Attorney's Office to make suggestions about the job description and scope of the investigator's duties before she makes her appointment, which won't happen before next month.

The judge acknowledged the case will be "an expensive endeavor" and ultimately could involve "hundreds of Sixth Amendment violations." She said financial issues will affect her decision about who she picks as special master, which is a quasi-judicial position often used to handle complex cases that would consume too much of a judge's time.

The confidentiality of a client's communications with his or her attorney is protected under the Sixth Amendment, which guarantees citizens the right to a fair trial with legal representation.

Melody Brannon, head of the Kansas federal public defender's office, called the prison's recordings and prosecutors' use of them part of a "systemic breach." She argued that the U.S. attorney's office didn't understand the magnitude of the case.

Noting the dozens of lawyers in Robinson's packed courtroom, Brannon said they "are here not because they're interested in this case, they're here because they're outraged."

Her voice shaking at times, Brannon said a special master with broad duties is necessary because her office doesn't have the resources to handle the investigation itself.

In an interview with The Associated Press, Suzanne Valdez, who teaches legal ethics at the University of Kansas, called the existence of video recordings of inmate meetings with their attorneys "a big deal."

She said even if no audio is recorded, a lot can be learned by reading lips or watching expressions if the video is available. When told the CCA contends such recordings are routinely done for safety concerns nationwide, she said that would be "a surprise to people, it is personally surprising to me."

___

Associated Press reporter Roxana Hegeman in Wichita contributed to this story.