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Judge orders U.S. to hand over grand jury material in Kansas prison recording case

Wichita — A judge ordered the U.S. government on Tuesday to turn over some grand jury materials to a court-appointed investigator who’s looking into whether secret recordings made of conversations between inmates and their attorneys at a federal prison in Kansas were improperly used by prosecutors.

U.S. District Judge Julie Robinson gave prosecutors until Nov. 21 to hand over grand jury transcripts related to a prison contraband case during which criminal defense lawyers discovered that the privately run Leavenworth Detention Center was routinely recording meetings between attorneys and their clients.

Prosecutors had asked for the prison’s video and audio recordings using grand jury subpoenas, and the court is trying to determine whether prosecutors knew those recordings included conversations between inmates and attorneys and whether prosecutors intentionally sought that material, which could violate inmates’ constitutional right to a fair trial.

Robinson’s order narrowly seeks transcripts of only those times a prosecutor requested a grand jury subpoena of a recording or reported the results of such a subpoena to the grand jury in the contraband case.

She told prosecutors to hand the material over to the court and Special Master David Cohen, who has been tasked by Robinson to investigate the collection and use of conversations between attorneys and their clients that are supposed to remain private. Cohen recently informed Robinson that the government was no longer cooperating with his investigation. Robinson cited that in issuing her order.

The judge also noted that former Assistant U.S. Attorney Erin Tomasic told the court last year that prosecutors had “a good-faith basis to believe” the video recordings contained attorney-client recordings when they sought the grand jury subpoenas.

The Justice Department argued in a court filing Monday that the recordings were made for legitimate security considerations. The agency said federal law prohibits most of the disclosures the special master demanded.

The Justice Department also argued that the special master’s investigation so far has uncovered no proof that the government violated attorney-client privilege. Only once did a prosecutor request video recordings of attorney meetings with clients at the prison, and the prosecutor did not actually view the recordings, the government argued.

Federal Public Defender Melody Brannon has separately asked Robinson to order the government to show why it should not be held in contempt for destroying evidence.

The government wiped clean the hard drive on the one computer dedicated to playing videos from the prison after the court had ordered the government to produce all hard drives from the U.S. attorney’s office. The move prevented the special master from potentially learning who viewed which recordings and when, the defense argued.

Robinson has scheduled a Nov. 28 hearing to discuss the special master’s findings and other issues related to the probe.

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