Judge Holds Entire Federal Prosecutor’s Office in Contempt for Spying on Attorney-Client Phone Calls

In an impressive and significant 188-page order, District of Kansas Judge Julie Robinson held the entire Kansas City United States Attorney’s Office in contempt this last Tuesday, August 13th, for listening to jail calls between attorneys and their clients and then concealing evidence and refusing to cooperate in the subsequent court-ordered investigation.

If you just did a double-take after reading that an entire federal prosecutor’s office was held in contempt, you’re not alone. It’s rare for a judge to hold individual prosecutors in contempt for misconduct, much less an entire office. But, as Judge Robinson found, “there is no template for this case, where the fairness of the adversary system is called into question by systemic prosecutorial misconduct of the type alleged here.”

Defense attorneys, ethical prosecutors, and people with a good old-fashioned belief in the sanctity of the Sixth Amendment and the justice-seeking mandate of the Department of Justice, should all be horrified at what Judge Robinson found happened here.

First, the USAO blatantly violated the attorney-client privilege: the USAO “[w]ithout factual support or accurate legal analysis, and contrary to DOJ directives, training, and USAO management advice unilaterally” started reviewing jail calls between attorneys and their clients. Note: not that it makes it better, but the Kansas USAO isn’t alone in this type of flagrant Sixth Amendment violation—the New Orleans District Attorney’s Office was scolded by the local Court Watch last year for listening to attorney-client phone calls.

Second, the USAO covered it up: it “surreptitiously” collected and saved the calls, making sure not to disclose them to defense attorneys or judges. It was only when a less-experienced prosecutor turned over the calls in discovery in a case that anyone found out about the practice—which had been going on for years.

Then, once caught, the USAO did everything they could to obstruct the investigation, conducted by a court-appointed Special Master, that followed. The USAO failed to timely issue a litigation hold, resulting in the loss of recordings as the office switched over its hard drives—and was evasive and dishonest with the court and the Special Master about what was preserved and what was destroyed. The USAO “thwarted” the Special Master’s investigation by failing to make key witnesses and documents available.

This is all the more egregious because one of the purposes of the investigation was to return confidential communications to incarcerated individuals. The USAO’s delay, obstruction, and in some instances, destruction of evidence, thus was not only an amazingly poor way to respond to a court-ordered investigation, but it also kept incarcerated people from evidence to use in both ongoing and post-conviction challenges to the Sixth Amendment violations on their cases.

So what are the takeaways, other than shock and shame at a federal prosecutor’s office behaving this way?

There are a few. It’s refreshing to see Judge Robinson and the Special Master appointed to handle the fallout take such a serious, thorough, and strict approach to what happened here. It’s confirmation that the Sixth Amendment—including a person’s right to have candid conversations with his or her attorney—matters. It’s a lesson on exactly how not to handle wrongdoing in government once discovered. And though Judge Robinson’s order works to find a path forward for individuals affected by the USAO’s Sixth Amendment violations, for many, the damage has already been done. The coming litigation in individual cases is an opportunity for judges to again find that the attorney-client privilege must be safeguarded and to right some of the wrongs of the Kansas USAO.

August 21, 2019