Public Defender Says Government Owes It Legal Fees For Misconduct In Leavenworth Tapings Case

Sep 26, 2019
Originally published on September 26, 2019 6:47 am

The federal public defender's office in Kansas says it’s entitled to nearly $224,000 in legal fees because of prosecutor misconduct in an explosive case over the taping of attorney-client phone calls at the Leavenworth pretrial detention prison. 

In a court filing this week, the public defender says it incurred nearly $1.7 million in fees and expenses litigating the case but is seeking only the amount “required to litigate the Government’s contemptuous conduct.”

It cites two areas of misconduct by the government, both of which had previously been identified by the court: its failure to preserve evidence in the case; and its failure to cooperate with witness and document production.  

“From the outset, the Government disregarded the Court’s Orders to preserve evidence and to cooperate, and, consequently, this litigation has dragged on for more than three years,” the public defender states in its filing.

U.S. District Judge Julie Robinson last month held the U.S. Attorney’s office in Kansas in contempt for its lack of cooperation in the case.

She issued her 188-page ruling in a contentious dispute over the extent of federal prosecutors’ involvement in the recording of attorney-client phone calls at the Leavenworth facility.

The detention center is run by CoreCivic (formerly Corrections Corporation of America), one of the country's largest private prison companies. The public defender claimed CoreCivic made video and audio recordings available to federal prosecutors. It said that violated inmates' rights under the Sixth Amendment.

The U.S. Attorney’s office at first denied accessing the recordings, then later said it had accessed only some.

In all, more than 1,000 phone calls between attorneys in the public defender's office and their clients were recorded. Robinson found that the U.S. Attorney’s office had a “systematic practice of purposeful collection, retention and exploitation of calls” made between detainees and their attorneys.

Scores of defendants charged with or convicted of federal crimes could see their cases dropped or prison sentences reduced based on their claims of prosecutorial misconduct and violations of attorney-client privilege.

A spokesman for the U.S. Attorney’s office did not return calls seeking comment on the public defender's fee request. Melody Brannon, the head of the federal public defender’s office in Kansas, declined to comment.

Not long after he was confirmed as the U.S. Attorney for Kansas in December 2017, Stephen McAllister sought to tamp down the furor over the recordings by seeking to reach an agreement with the federal public defender’s office. The agreement called for affected defendants’ prison sentences to be reduced.

But he was overruled by then-Deputy Attorney General Rod Rosenstein, who said that the Justice Department could not approve blanket reductions of defendants’ sentences “absent evidence of particularized harm.”  

The federal public defender estimates it spent nearly 7,000 hours on the litigation over a three-year period, but says it’s seeking only those fees it incurred in connection with government’s misconduct.

It bases its fee request on hourly rates ranging from $325 an hour for Brannon and her top deputies to $250 an hour for two assistant public defenders to $100 for the office’s investigator. The $325 figure is well below what senior attorneys at Kansas City’s top private law firms charge for their work.    

Even if Robinson awards the requested fees, the money won’t be directed to the public defender’s budget. Rather, the public defender is requesting that Robinson consult with an arm of the Administrative Office of the U.S. Courts to determine where the funds should go.  

The disclosures that attorney-client calls and meetings at Leavenworth were recorded spawned two separate class action lawsuits by inmates at the prison and their attorneys. Last month, CoreCivic and the operator of the phone system at the prison, Securus Technologies, agreed to settle the case with the inmates for $1.45 million. The attorney class action is pending.

Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.

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