Posted on August 20 2019
Judge holds Kansas AUSA Office in Contempt
For those of you who may have overlooked my private-prison series you might want to familiarize yourself. I’ve been a vociferous opponent of the current Administration’s Private/Public Prison for Profit scheme. One could argue this seismic shift in policy has allowed a few of Donald Trump’s donors to unjustly enrich themselves.
This was the precursor of the private-prison series, which includes multiple DHS-OIG reports of the substandard living conditions within several “private-public” Immigration detention facilities. Again I embedded the actual reports and highlighted the relevant sections. You’ll note that halfway in to that entry I had a Sidebar specific to the GEO Group. Moreover it wasn’t until I took the time to read DHS-OIG Report No 19-47 did I realize three of the four ICE detention centers are “managed” by The Geo Group. Which means the Geo Group bares some if not all the responsibilities of the horrid living conditions detailed in the DHS-OIG reports.
In GEO Group Part I - you’ll note the various criminal charges, the problematic work environments, the profiteering of Unaccompanied Minors, GEO Group’s Annual Reports (note the sectors where they loss contracts, BOP)...
In GEO Group Part II - I drilled down on their lobbying efforts, political donations, PAC donations and numerous contacts. The data shows an astronomical spike in Federal Contracts granted by the Trump Administration. And clearly the GEO Group’s return on investment has the Executives and Trump and John Kelly laughing all the way to the bank.
In GEO Group & Civic Core - the House OverSight wants answers to the horrid conditions, the largesse awarded to Private-prison companies. Below are the various letters sent to the private (for profit) Prisons.
In GEO Group Part III - I specifically pointed out the following case, this is important because its an actual pattern. That when you add a “for profit” entity in to our prison pipeline - there’s little oversight and a bevy of predictable scandals that almost always occur.
On July 31, 2015 Olivarez filed a Motion for Sanctions against GEO Group’s two attorneys, for deliberately withholding evidence and “certifying” to the Court they had disclosed all relevant evidence during discovery.
The two GEO Group Attorneys were sanctioned $1,000 by the District Court. The 5thCCOAs affirmed the District Court’s Ruling.
Olivarez v. GEO Group, Inc., et al, No. 16-50191 (5th Cir. 2016)
I want you to understand what the GEO Group’s position was, that she (the prisoner) “initiated” the “consensual sexual relationship” and therefore her civil rights were not violated, after all of course she “wanted it” and there’s no “rape” ...oh you think I’m sensationalizing the GEO Group’s Official position? I’m not this is what the factual record shows.
Currently CoreCivic houses approximately 90,000 inmates - they have more than 60 facilities throughout the Country. In 2018 CivicCore made approximately $160 million in net profits.
Judge to Kansas AUSA Office - Contempt
United States v. Black et al, (2:16-cr-20032)
This recent 1 minute video by the Kansas City Star, who has done a phenomenal job following this case since 2016 - provides you a tic toc of the who, why, what, when, how concerning Leavenworth Detention Center, owned and operated by CoreCivic (formerly Corrections Corporation of America). The abbreviated central issue is on a massive scale the US Government and CoreCivic recorded thousands of conversations between inmates and their attorneys. In some of these instances the Kansas AUSA’s office listened in on these conversations that are strictly covered by a foundational principal known as “attorney-client privilege”.
On May 27, 2017 Judge Robinson (if that name rings a bell - it should, she’s the same Judge that found Kris Kobach in Contempt. Hit him with a $1,000 sanction and subsequently ordered him to 6 hours of CLE). On October 11, 2016 the Court appointed a Special Master. after the Government responded to the Federal Public Defender Motion the Court Ordered that in the interest of Justice on October 11, 2016 a Special Master be appointed to conduct a thorough investigation into the allegations that inmates’ rights may have been violated.
The subtext here is if in the Course of this Investigation the Special Master determined that the Government had impermissibly listened to “privileged” communications - that would be one perils step away from gross prosecutorial misconduct and flirting with criminality.
Federal Public Defender’s Office:
urged a special master investigation of how and why these video recordings had been made, how and why these recordings were in the possession of the government, and whether the government had viewed the recordings or otherwise engaged in misconduct violative of the parties’ attorney-client privilege and Sixth Amendment rights. The government wanted the special master’s work to be limited to acting as a taint team or privilege master, culling the video recordings of attorney-client conferences from the video recordings of all other recorded activity throughout the CCA facility.
Prior to the Court appointing a special master - in August of 2016 the Court ordered the “government to produce all originals and copies of video recordings of attorney-client communications in its possession or in the possession of law enforcement agencies.” - The evidence showed that the Leavenworth Detention Center had video recordings in six of CCA Leavenworth’s eight attorney-client conference rooms “with the assistance of pan and zoom functions” While these video recordings contained no audio it did allow for the Kansas AUSA’s office to observe “non verbal communications” between the inmate(s) and their attorney(s).
The Court further ordered CCA to immediately cease and desist from
recording of attorney-client communications inside the detention facility, attorney client phone-calls and attorney-client video conference calls. The Court later ordered CCA to produce to the United States Marshals Service (“USMS”) any and all video recordings of attorney-client conference rooms for the time period May 1, 2016 through the date of production.
And if the impermissible video recordings were not bad enough, the Court heard evidence from the Federal Public Defenders that audio recordings of telephone conversations between inmates and their attorneys had been (impermissibly) given to the Kansas AUSA’s office:
The Court also heard evidence that CCA Leavenworth records outgoing phone calls placed by inmates to their attorneys unless the inmate informs CCA Leavenworth that they are placing a call to counsel. The Court also heard evidence that other detention facilities in Kansas and Missouri that house federal inmates charged in this District record phone, video and/or face-to-face communications between attorneys and their clients. Accordingly, the Court finds reason to order 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 Court further finds reason to order the detention facilities described above to submit written
In the course of the Special Master’s Leavenworth Investigation, he determined that thousands of hours of video (non audio) recordings occurred between Inmates and Defense Attorneys. Moreover on a conservative estimate the Special Master determined that during a 12-week “recording period showed a total of over 700 attorney visits to the attorney rooms where recording took place” the mathematical formula disclosed on page 5 of his January 2017 Report, which reads in part:
Seven cameras x 86 days x 24 hours/day = 14,448 hours of video. For some reason, however, certain time periods were not recorded. For example, there are no recordings on DVR drive no. 6 (from any cameras) from April 27-28, 2016. Various recording gaps exist on the other DVR drives, as well.
Facts & Conclusions after three years
After a protracted three year battle, on August 13, 2018 Judge Robinson issued a brutal 188 page FINDINGS OF FACT AND CONCLUSIONS OF LAW in No:Case No. 16-20032-02-JAR - the sweeping and systemic prosecutorial misconduct is breathtakingly awful. Not only with respect to inmates rights but worse that the Kansas AUSA’s office engaged in violating inmates rights but by “cheating” and leveraging attorney client communications. The opening paragraph concisely states what this case is all about. It should also be noted that once the Court appointed a Special Master, the Government (DOJ, BOP, and Kansas AUSA) refused to cooperate. Their refusal lead to a lengthy delay. And yes while this originally commenced during the Obama Administration the vast majority of the Government subterfuge occurred after Trump was sworn in.
According to the Kansas City Star - the totality of the adverse impact of the Kansas AUSA’s Conduct and their willingness to engage in the most egregious prosecutorial misconduct hadn’t been fully actualized. However to date:
At least three criminal defendants in Kansas have had their sentences vacated or their indictments dismissed as a result of the scandal. More than a hundred others have filed petitions for similar relief.
Robinson found the USAO’s “wholesale strategy to delay, diffuse, and deflect” investigators’ inquiry into the office’s misdeeds, which resulted in “denying the individual litigants their day in court for almost three years.”
Court declines to impose spoliation sanctions at this time for the Government’s probable destruction of evidence material to the Special Master’s investigation, the record in this case may lay the groundwork for specific spoliation claims in individual cases brought under 28 U.S.C. § 2255. Moreover, the Court easily finds that the Government willfully violated myriad Court orders and Special Master directives, and the Court imposes monetary sanctions for these violations.
28 U.S.C. §2255 is the most prudent avenue, versus issuing a blanket order. Meaning allowing the Court to review each inmates “Motion to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody” on a Case by case basis is incredibly pragmatic and in the best interest for all parties. But the reality is this kind of conduct isn’t limited to the Kansas AUSA’s office.
Kansas AUSA Office - gross misconduct
It’s important to remember this was nearly three years in the making. Judge Robinson managed this case with pragmatic and measured actions, all while being relatively fair to all parties. I ran a few searches in WestLaw, Lexis Nexis and the Law libraries of Congress, the GW and Georgetown. Because I wanted to check multiple known legal databases, to determine if there has ever been any occurrence where and Article III Judge holds an entire AUSA Office in Contempt.
In general it’s not a good look when numerous members of the USAO send emails that include the following language in regard to the Court’s clawback order (that’s when the Court ordered all video & telephonic recordings be turned over to the Court and the Special Master:
Metzger expressed concern that the Court’s clawback language was broad, such that with respect to phone recordings that were on the share discovery drive, they should “delete them from the drive,” or “lock them down” and give the Court notice of that. The USAO ultimately did neither.
On page 48 - in stark and clear terms the prosecutorial misconduct is laid bare. The Judge did not mince words. At all. The specificity of using “ knowingly and intentionally” should not be lost on you. The evidence was clear and the Judge had zero issue highlighting the truth.
What is clear is that only with respect to two former prosecutors—Tomasic and Treadway—did the Government produce any paper records or any volume of ESI. Notably, the production of their records revealed that Tomasic and Treadway had knowingly and intentionally listened to attorney-client phone calls in one or more of their cases.
It should also be noted that as of August 2019 the Government is still producing records that the Court ordered to be turned over some three years ago. Also remember to always read the footnotes, the numbers are in fact mind bending:
Federico encountered an incomplete if not scant paper trail on requests and fulfillments of requests for jail calls, which prevented any complete quantitative
analysis based on documentation of calls requested or received. Thus, Federico’s analysis was limited to “known” requests.
AUSO unwillingness to Cooperate with the Special Master
Starting on page 54 - you’ll note that when a Special Master is appointed there’s usually a detailed scope and statement of work. These are guardrails that keep the Investigation “in check” and typically seek to keep the investigators on task. It is clear that this Special Master opted to take a non-adversarial approach, specifically an “open door policy” and focused squarely on the facts and truth. Over the course of this nearly three years long investigation the attorneys within the USAO repeatedly violated numerous court orders, destroyed evidence, mislead the Court and the Special Master and out right refused to cooperate with the investigation.
To further enumerated the totality of the recordings the AUSA’s office accessed - often times the AUSA told investigators that they “never received and/or listened to attorney client calls” recorded at the Leavenworth Detention Center. The investigation proved those were repeatedly flagrant misrepresentations, essentially numerous attorneys in the Kansas AUSA’s office lied, repeatedly.
Various attorneys engaged in dysfunctional behavior seeded in their “distrust of current and former management” - some attorneys testified that the office environment was “Lord of the Flies’ and the office environment was “the inmates-run-the-jail” but of all of the egregious actions - I personally found the fact several Attorneys within the Kansas AUSA’s office “recorded conversations with one and other” and did so surreptitiously (See Pages 120 thru 122). One could also infer that these attorneys probably didn’t have happy hours or other team building events - that working there is analogous to being in a pit of vipers, as each attorney turned on fellow attorneys:
Warner specifically directed Tomasic not to seek advice or counsel from Catania, Morehead, Rask, or Flannigan, whom Warner believed engaged in heavy-handed prosecutorial practices. But, Warner testified, in time Tomasic started aligning herself with some of those prosecutors and “we lost her.”
It is astounding that to date the Kansas USAO is still producing recordings of nearly 100 defendants - “the production process is still ongoing” - meaning that hundreds of defendants rights (specifically sixth amendment rights) were violated by the attorneys in the Kansas City USAO. Hence the systemic prosecutorial misconduct is far greater than the public knew about. The realty is the Government equivocated that this was just “one rogue attorney” but once the evidence started piling up the Government pivoted to “two rogue attorneys”. If that wasn’t enough the Government
Management refused to search and produce any repositories other than those
of Tomasic and Treadway. Management knew it had a problem with at least some of the prosecutors in the Kansas City office, yet delayed search and production of any active AUSA’s repositories until Clymer took over. Then, under his direction, management defied the Court’s orders and directives, continued to fail to preserve such that years of documents were potentially lost, and then only produced what they chose to produce.
Not only did the Judge find the entire Kansas USAO in Contempt - Defendant Black’s Indictment was dismissed. The Court ordered parties “shall jointly submit a list of pending § 2255 cases”, ten days from the date of the August 13, 2019 Order, which means by this Friday August 23, 2019 there will be a flurry of additional filings. The Court went on to award some of the Federal Public Defenders, attorneys fees and ordered the FPD to submit additional filings. The FPD requested a global ruling but the Court is somewhat limited. My impression is this is in part ripeness meaning of the numerous pending cases, generally Courts are renaissant to take action that could foreclose on the full record being established. Instead this Court explicitly stated:
The Court cannot make a broad Sixth Amendment violation determination nor grant the sweeping remedy the FPD seeks on this record, it has endeavored in this opinion to create a comprehensive record and establish legal standards and threshold procedures that will give individual § 2255 litigants the opportunity to finally obtain efficient, fair, and consistent relief without further delay.
In my opinion the Department of Justice needs to replace the entire Kansas City USAO - because it is clear this wasn’t one or two rogue attorneys within the AUSA’s office. It’s the whole damn office. Absent a full cleaning out the public’s trust and faith of this AUSA’s office will continue to erode and in doing so it will call in to question any future Indictments and whether the conduct of this prosecutors can be trusted. I would submit that after a nearly three year investigation and 188 pages show why this office can not nor should be trusted. The table of contents in this exhaustive FINDINGS OF FACT AND CONCLUSIONS OF LAW provide you a general understanding of how sweeping the Government’s misconduct was and is (yes it’s still ongoing). At the very minimum if the Department of Justice wants to rebuild the trust then the Attorney General Barr should immediately accept these findings, issue new guidance and order the DOJ-OIG to investigate the current and former prosecutors. Absent that every action the Kansas AUSA takes should be scrutinized versus blindly giving this office the benefit of the doubt.
Lastly earlier today the Court Ordered the Government:
By August 30, 2019, the Government shall file a Status Report on the state of its compliance with the Court's December 14, 2018 Order Regarding Recorded Phone Calls
Not isolated to Kansas AUSAs - At all
In 2016 Ryan Bundy, Pro Se Inmate: Swis# 795070, Multnomah County Detention Center Case No. 3:16-cr-00051-BR-05 filed a Petition for a Protective Order concerning his communications with his attorney.
Crane v. Corecivic 2:17-cv-02031-CM-JPO this case was dismissed without prejudice on January 8, 2018, but given the August 2019 ruling - Crane might have Cause to re-file his Complaint especially since it’s in the same Fed District and involves the same AUSA’s office,
Tomorrow I’ll follow up on CoreCivic and Securus because I’m still researching various datapoints. But my parting thought on the Trump Administration’s reversal of private-for-profit Prisons, (See previous article here) - It should be noted that on August 23, 2016 then Assistant Attorney General Yates issued the following Memorandum to the Acting Director of Federal Bureau of Prisons - that the Administration reduction of Private Prison Contracts. Notwithstanding the aforementioned 2016 DOJ Memo states the end goal is to end private prison contracts - specifically for the Bureau of Prisons. In then AAG Yates’ Memo there’s a reference to a 2016 DOJ-OIG Report - concerning Private Prisons.
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