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Federal Prosecutor’s Office in Kansas Considers It Acceptable to Listen to Attorney-Client Conversations

by Kevin Bliss

United States District Court Judge Julie Robinson released a 188-page opinion August 13, 2019, holding the Kansas branch of the U.S. Attorney’s Office (“USAO”) in contempt for deliberate obfuscation and misrepresentation during a three-year investigation of prosecutorial misconduct by their office for the illicit use of client-attorney conversations. United States v. Carter, 2019 U.S. Dist. LEXIS 137728 (D. Kan. 2019).

The USAO was conducting its own investigation of a private prison in Leavenworth, Kansas, in 2016 for drug trafficking. During one of the hearings integral to the case, then-Special Assistant U.S. Attorney (“AUSA”) Erin Tomasic stated that her office was in possession of evidence recorded from the prison’s visitation rooms, including the rooms set aside for attorneys and clients. This caused great concern among federal public defenders. It was a direct violation of the Sixth Amendment protection governing private conversations between an attorney and his or her client.

Robinson appointed Special Master David Cohen to investigate the Kansas USAO for possible rights violations. Cohen had the court issue an order in August 2016 to place a hold on any evidence related to the case. Robinson’s ruling stated that the USAO interpreted that order to apply only to the original case that prompted the investigation. Cohen had a second order in October 2016 clarifying that the hold applied to all evidence surrounding requested recorded prison conversations and e-mails pertaining to such.

Even then, Robinson’s ruling stated that the order was ignored. A directive was not issued to employees to hold this evidence until December 2016, and that directive was never fully enforced, allowing hard drives to be wiped of evidence that could have impacted hundreds of prisoners.

Evidence that was discovered showed that AUSA Tanya Treadway kept extensive notes of privileged conversations between Michelle Reulet and her attorneys. Reulet was charged with mail fraud and had been discussing a strategy with her attorneys concerning an outcome that would allow her to gain custody of her child before her husband could. Cohen found 106 pages of Treadway’s notes concerning the criminal case, bond revocation litigation, a separate DUI case, and the child custody case. Treadway retired, and Reulet’s sentence was vacated.

Tomasic testified at a hearing that the consensus she received from her colleagues in the USAO was that these recorded conversations were “fair game.”

Phone and video recordings would be requested in large batches in drug trafficking investigations. Usually, attorneys speaking to their clients in the prison would follow a specific procedure to ensure calls to or from their number would not be recorded. However, many calls were still recorded because the attorney or his or her client were not aware of the procedure or prison employees failed to properly privatize the number. These conversations would be in the requested batches and inspected for usable information in open USAO cases. Tomasic initially raised ethical concerns about the practice, but allegedly the prevailing culture in the USAO eroded these concerns.

She said she left lunchroom discussions with the impression that, “If the defense attorney is stupid enough to make a call on a recorded line, then that’s on them and you have no obligation to alert them.”

Robinson’s ruling cited that Tomasic was counseled by the Department of Justice (“DOJ”) Professional Responsibility Advisory Board that recording preambles were sufficient notification that the conversation was no longer privileged. Kentucky criminal defense attorney Carlos Moran, representing prisoner Juan Antonio Herrera-Zamora against drug trafficking and firearms charges, said, “To me, to say that an attorney who received a phone call from a client who is in jail waives the attorney-client relationship, I don’t know where they got that from. I don’t know what constitution they were reading.” Herrera-Zamora’s sentence was reduced to time served, and he was released March 2018.

It is estimated that as many as 1,500 privileged calls were recorded between 2010 and 2017. Already 110 petitions have been filed by defendants who believe their rights have been violated.

Robinson’s ruling said that the USAO raised defenses of collateral waiver and procedural default in every one of the cases. These arguments were rejected by Robinson in a separate ruling setting a precedent for other cases to move forward. The DOJ, under former Assistant Attorney General Rod Rosenstein, rejected blanket sentencing reductions in affected cases, and now each case will be “triaged” and evaluated on the merits.

The USAO is considering appealing Robinson’s decision. Tomasic was the only individual fired from the office. 



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