The Kansas Federal Public Defenders’ Office has challenged a scheme whereby officials at a detention center in Leavenworth, Kansas operated by Corrections Corporation of America (CCA) secretly video-recorded confidential attorney-client meetings. As a result, on August 10, 2016 a Kansas federal district court ordered the practice to “cease and desist” immediately. U.S. District Court Judge Julie A. Robinson also ordered that all originals and copies of such recordings be surrendered immediately to the court.

The previously-undisclosed surveillance practice came to light when a private attorney, Jacqueline Rokusek, was advised by the U.S. Attorney’s Office for the District of Kansas that she had a conflict of interest in representing a client. She was allowed to inspect video recordings made at the CCA detention center and discovered that dozens of supposedly confidential meetings between other attorneys and their clients were on the same disks. She then alerted the Public Defenders’ Office and defense bar, igniting a firestorm of protest from criminal defense attorneys.

Experts noted that although the recordings of the meetings apparently did not include sound, the faces of the participants, documents and exhibits discussed were clearly visible. The words spoken could also be gleaned by lip-reading experts, they said. The Public Defenders’ Office represents approximately 75 defendants at the detention center, which houses federal detainees from Kansas, Iowa, Missouri and Nebraska. The video recordings of the attorney-client meetings had been made available to the U.S. Attorney’s Office upon their request, without disclosure to the lawyers who were recorded or their clients.

Defense attorneys were understandably outraged after the practice was exposed, and packed the district court for an emergency hearing on the clandestine video recordings. According to the sworn testimony of attorney Rokusek, “When we go to CCA, every attorney that meets there had an expectation of privacy. We expected that those meetings with our client were private. That’s how it has been, that’s what we understood from CCA and that was in fact not the case.”

Legal ethics experts who testified at the hearing, including Washington University law professor Peter Joy, said that such a recording practice constitutes a clear case of professional misconduct for dishonesty, fraud, deceit or misrepresentation in every state. Melody Brannon with the Kansas Public Defenders’ Office was sharply critical of the apparent indifference of the U.S. Attorney to the practice, saying, “We are stunned by the cavalier attitude of the government. They shrug off the constitutional issues here.”

Judge Robinson’s order left no doubt of her position on the matter. She ordered “all detention facilities in Kansas and Missouri, as well as CCA, that house detainees charged in this district, to immediately cease and desist all: (1) audio-visual recording of attorney-client communications in the detention facility; (2) audio recording of attorney-client phone calls; and (3) audio-visual recording of attorney-client videoconference calls.”

The district court also indicated it would consider a request to appoint a special master to oversee compliance with its order and future proceedings. See: United States v. Black, U.S.D.C. (D. Kan.), Case No. 2:16-cr-20032-JAR.

Federal prosecutors in other jurisdictions have been criticized for similar recordings of attorney-client phone calls in detention facilities, which are routinely forwarded to prosecutors, and the issue has drawn the attention of members of Congress who introduced a bill to halt that practice. As succinctly stated by Peter Joy, “If anybody consciously made a decision like that [to record attorney-client meetings], in my opinion that person is unfit to have any job having anything to do with the government.”

Sources: www.salinapost.com, www.cjonline.com, www.kcur.org

Related legal case