AP NEWS

Judge hears evidence in Kansas prison recordings case

May 15, 2018

KANSAS CITY, Kan. (AP) — An assistant U.S. Attorney in Kansas declined to answer most of the questions he was asked Tuesday during a hearing to determine whether federal prosecutors improperly used secretly recorded conversations between attorneys and their clients at the privately run Leavenworth Detention Center.

Scott Rask, criminal coordinator in the U.S. Attorney’s office in Kansas City, Kansas, repeatedly said he was not authorized to answer questions asked by a court-appointed special master and an attorney for Federal Public Defenders about whether some attorneys and staff illegally listened to the calls to help their prosecutions and whether the office notified defense attorneys that the calls existed. Other federal prosecutors scheduled to testify at the two-day hearing are expected to also decline to answer.

U.S. District Judge Julie Robinson scheduled the two-day hearing to consider findings by Ohio attorney David Cohen, whom she appointed to investigate the government’s failure to comply with the investigation and the appropriate response or remedies.

Questions asked of Rask by Cohen and Braden Bell, an attorney for the Federal Public Defender office in Topeka, indicated that some attorneys in the Kansas City, Kansas, office were aware of the recorded conversations and believed they did not have to reveal the calls existed to defense attorneys. The cited email chains and earlier depositions and court motions that seemed to indicate that attorneys in the office had discussed the secret recordings and whether their existence should be revealed.

The U.S. Attorney’s Office stopped cooperating with an investigation in October 2017 at the direction of Steven D. Clymer, a federal prosecutor in New York who was appointed to be the liaison with Cohen after the federal prosecutors’ office decided it had a legal conflict during the investigation.

Much of the evidence discussed Tuesday centered on former special assistant prosecutor Erin Tomasic, who first denied listening to the tapes but lost her job after admitting in June 2017 that she had listened to some of the conversations. Other evidence involved discussions among lawyers in the office on how to react to Tomasic’s use of the tapes and related issues.

Among the questions Rask refused to answer were whether he ever directed anyone in the U.S. Attorney’s Office not to share documents with Cohen, or if he was aware that other attorneys had listened to the taped phone calls.

The investigation grew out of a prison contraband case during which criminal defense lawyers discovered that the prison was routinely recording meetings between attorneys and their clients.

Robinson subsequently expanded the probe to look into the conduct of federal prosecutors and staff, citing the government’s lack of transparency about its possession, knowledge and use of recordings. She said she found that prosecutors have made inconsistent, inaccurate or misleading statements.

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

The government contends no evidence exists that any of the clients at the Leavenworth facility had their constitutional rights violated by recording the phone calls, and that there is no evidence that the U.S. Attorney’s Office didn’t direct the taping of the calls or how they were used.

Earlier Tuesday, Kansas Bureau of Investigation Special Agent Jeff Stokes testified that he reviewed thousands of taped calls as part of the contraband smuggling investigation. He said he would stop listening to the calls if he believed they were between an attorney and a client and federal prosecutors told him not to listen to the calls. But he also said numerous times that he didn’t recall when he became aware of the tapes or who in the U.S. attorney’s office he had discussed the calls with during the investigation.

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