A federal judge has held prosecutors in contempt for failing to preserve evidence in a case involving recorded conversations between prisoners and attorneys.
Some 110 defendants alleged the recordings violated 6th Amendment protections. Three defendants had their sentences vacated or indictments dismissed, the ABA Journal reported in August.
Judge Julie Robinson of Kansas City, Kan., ruled in favor of the defendants, citing a special master’s investigation of recordings made by inmates attorney-client phone calls. She said the investigation proved the Attorney General’s Office’s failed to cooperate in preserving evidence.
“Under his discretion, management defied the court’s order and directives, continued to fail to preserve such that years of documents were potentially lost, and then only produced what they (Attorney’s General Office) chose to produce,” Robinson ruled.
The judge declined to rule in favor of a per se 6th Amendment violation of right to counsel for the defendants in the case but cautioned that the individual defendants named in the suit whose calls were recorded at the Leavenworth Detention Center, could raise prosecutorial misconduct claims individually based upon her findings, according to the article.
The center is operated by CoreCivic Inc., formerly the Corrections Corporation of America.
It was estimated that over 1,429 attorney-client calls were received by the U.S. Attorney’s Office upon request by the federal prosecutors between 2010 and 2017, according to findings by Judge Robinson.
She noted that when requests were made to the prison for recorded phone calls by federal prosecutors, there was at least a 28 percent chance the calls contained attorney-client privileged calls, the article stated.
Two attorneys for the U.S. Attorney General’s Office were released from their official position. The judge found that they had “knowingly and intentionally” listened to recorded attorney-client calls in one or more of their cases, the judge noted.
The U.S. Attorney’s Office stated that those lawyers were “rogue” attorneys.
The judge also found that the U.S. Attorney’s Office “willfully misconstrued” a preservation order, avoiding the preservation of some evidence. The office did not act on the formal litigation hold order until May 2017. Some of the computers’ hard drives were wiped clean. These facts were determined by David Cohen, special master in the case.
The article said a former attorney for the U.S. Attorney’s office testimony of a lunchtime discussion on record disclosed the following:
“Their conclusion was that phone calls placed by detainees to their lawyers weren’t privileged because they were on notice the call was being recorded. The group also concluded that if the lawyers were ‘stupid enough’ to talk to their clients over the phone, prosecutors had no obligation to disclose the recorded calls.”
The case is United States v. Carter.