‘WIN AT ALL COSTS’

U.S. Attorney’s Office Under Investigation After 700 Lawyers Were Spied On in Prison

A U.S. Attorney’s Office is found to have stashed hundreds of calls between inmates and lawyers. A veteran prosecutor says his old colleagues have gone rogue.

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Photo Illustration by Elizabeth Brockway/The Daily Beast

A court-appointed investigator has found that the United States Attorney’s Office for Kansas is in possession of hundreds of phone and video recordings of communications between attorneys and their clients, inmates at a privately run prison facility in Leavenworth.

At least 700 attorneys are believed to have been recorded without their knowledge, the investigator’s report submitted to a federal court said. Last week Special Master David Cohen asked to expand his probe to determine whether prosecutors regularly listened to and compiled attorney-client conversations. Already, 227 phone call recordings and at least 30 videos of attorney-client meetings have been discovered in the U.S. Attorney’s Office in Kansas City.

The U.S. Attorney’s Office declined to comment for this story.

Prosecutors obtained recordings of the conversations with the help of the private-prison company that runs Leavenworth, CoreCivic, and the company that provides communications services there, Securus Technologies. Both companies have been sued several times in the past for violating the constitutional rights of inmates by recording calls between them and their attorneys. (CoreCivic did not respond to multiple requests for comment. Securus did not immediately respond to a request for comment.)

The systematic recordings were discovered by a defense attorney who was recorded speaking with her client about the government’s case against a drug ring inside the prison.

Jackie Rokusek told The Daily Beast she was called to the U.S. Attorney’s office in Kansas City last August, where she said she was told by prosecutors that they had video evidence of her providing her client with confidential information about a drug ring case. Rokusek was given a computer and she watched the video, then she says she accidentally clicked on another file. A window opened, and a video showing another attorney meeting with their client at Leavenworth played. Stunned, Rokusek immediately went to the Federal Public Defender’s office in Kansas City and told them what she’d found.

Law enforcement had been listening to inmates talk to their accomplices outside the prison for months, and prosecutors had built a strong case around the evidence gained from those calls. The allegations were detailed in an April affidavit filed by the Kansas Bureau of Investigation. A drug dealer named Lorenzo Black supplied drugs to a prison guard, Anthony Aiono, who smuggled the drugs into the prison and gave them to the head of the drug ring, a violent inmate named Karl Carter. The drugs would then go to another inmate, Stephen Rowlette, before being distributed to paying prisoners. In the final six weeks of the investigation, nearly $15,000 had been deposited into Carter’s account.

With thousands of phone calls and a confession from Aiono, law enforcement and prosecutors had more than enough evidence to file charges against Aiono, Black, Carter, Rowlette, and several others.

Special Agent Jeff Stokes of the Kansas Bureau of Investigation filed his affidavit on April 9, 2016. U.S.A vs. Black was officially underway in Judge Julie Robinson’s Kansas City courtroom.

***

It was an inmate with secondary involvement in the Black case who would soon be responsible for shifting its focus from the drug ring to the recording of attorney-client conversations.

Inmate Richard Dertinger was named as a non-indicted co-conspirator in the Black case, and has been convicted for his involvement in a separate synthetic marijuana operation inside Leavenworth. During Dertinger’s meeting with his attorney, Jackie Rokusek, prosecutors believed she provided him with confidential information regarding the Black case—an alleged conflict of interest that the U.S. Attorney’s office thought would force Rokusek to recuse herself from Dertinger’s synthetic marijuana case. Several sources close to the Black case who spoke to The Daily Beast on the condition of anonymity said prosecutors wanted Rokusek off Dertinger’s case because she is a “feared lawyer.”

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Rokusek said prosecutors planned to show her video in which she allegedly provided Dertinger with the confidential information during their meeting at Leavenworth under the belief she would recuse herself from the case. It backfired.

Critics of prosecutors in the U.S. Attorney’s office say that, not only should they never have watched and listened to conversations between attorneys and their inmate clients, but that as soon as those recordings came into their possession, defense attorneys like Rokusek should have been immediately informed. Such conversations are privileged, said Peter Joy, a law professor at Washington University who testified in the August hearing that addressed the Rokusek video.

“It is like a dealer at a casino having a secret camera to look at the player’s cards,” said Joy. “Just like that would be cheating at a casino and lead to the dealer always winning, intruding into the confidential communications of clients and lawyers takes away the promise of a fair trial.”

***

The Black case isn’t the first time that CoreCivic and Securus have been accused of violating inmates’ constitutional rights. The revelation that the two companies had recorded and stored massive quantities of inmate phone calls came only after someone hacked Securus in 2015 and released 70,000 recordings to The Intercept, which found some 14,000 attorney-client conversations in the database.

At Leavenworth, CoreCivic’s head of security told an investigator with the Federal Public Defender’s office that cameras in meeting rooms there did not record attorney-client conversations, according to the investigator’s testimony at a hearing regarding the Rokusek video. When pressed, CoreCivic eventually admitted that it had been recording attorneys and their clients in meeting rooms at Leavenworth—and storing those videos for 30 days—since 2008, according to an investigator with the Federal Public Defender’s office.

For a 12-week period in 2016, any attorney that met with a client—even those who were not involved with the drug ring—had their meetings recorded on video, the investigator found.

***

CoreCivic’s stock was plummeting six months ago following a Justice Department order that called for the federal government to stop using private prisons, but the company’s outlook—and its stock price—have been invigorated with the election of Donald Trump. The company’s hopes were raised even further when Attorney General Jeff Sessions rescinded an Obama-era directive to end the use of private companies to run federal prisons.

That was the icing on the cake for CoreCivic, which already saw hope for its bottom line with Trump’s promises to lock up large numbers of illegal immigrants, thereby filling CoreCivic facilities, many of which house immigrants and refugees, to capacity and perhaps beyond.

Accusations that CoreCivic violated inmates’ constitutional rights by recording conversations with their lawyers are the mildest of allegations compared with some of the other lawsuits the company has recently been involved in.

Understaffing—to the point of dangerous conditions that have claimed the lives of both inmates and staff—is a major theme at CoreCivic facilities. A federal jury in Idaho found CoreCivic regularly understaffed a prison there, partly resulting in a “mass attempted murder” in which eight men were stabbed dozens of times by rival gang members, according to the lawsuit filed on the inmates’ behalf. Incredibly, all of the inmates lived. CoreCivic wasn’t required to pay any fines as a result of a judge’s decision, which came down in February.

As for Leavenworth, it is portrayed as a fairly lawless place in the affidavit filed by the Kansas Bureau of Investigation in the Black case. Not only was Aiono smuggling drugs into the prison, he is also accused of providing a knife to Karl Carter, the leader of the drug ring. (Carter is accused in the affidavit of stabbing two men in Leavenworth, but it isn’t known if the weapon he used was the one given to him by Aiono.) The drug ring itself was alleged to have operated partly from a 12-step recovery program inside the prison. Despite having to pass through security to get into the area where the program’s meetings were held, members of the drug ring had little trouble getting their product past guards.

Informants told law enforcement that “90 percent of the time, when metal detectors went off,” guards stopped no one, according to the Black affidavit. One guard is accused by law enforcement of purposefully turning a blind eye toward the sale of drugs, as well as their open and frequent use.

“It’s not an impressive facility,” said a source close to the Black case.

***

Mike Warner is not surprised about the allegations that have come out of the Black case. From 2010 to 2013, Warner was the first assistant U.S. attorney in the District of Kansas, serving directly under former U.S. Attorney Barry Grissom. What Warner saw in his time in the Kansas City office is in line with Rokusek’s allegations of heavy-handed practices there.

In an interview with The Daily Beast, Warner voiced “strong disagreement with prosecution practices” in the Kansas City office, where he said there exists a “culture immune from supervision.”

“Prosecutors are supposed to be ministers of justice, exclusively concerned with matters of fairness and due process. The polar opposite is a ‘win at all costs’ mentality or a self righteous ‘ends justifies the means’ approach,” Warner told The Daily Beast. “Further, one of the most fundamental things prosecutors must do is make sure a defendant’s constitutional rights are protected.”

The investigation conducted by Cohen, who was appointed by Judge Robinson to conduct his investigation, has been restricted to the practice of listening to and storing recordings only as it relates to the Black case. It is now up to Robinson to decide whether to allow Cohen to expand the investigation to see if what happened in the Black case has occurred in other cases. Warren and others believe it’s appropriate for Cohen to expand the probe into a pattern-and-practice investigation.

“I cannot fathom how an office acquired such a high volume of Sixth Amendment materials whether unwittingly or not,” Warner said. “I also cannot imagine this situation being dismissed without a full and complete investigation either by the Special Master or other federal investigative entity about how something like this occurred or why the U.S. Attorney didn’t know what was going on in his own office.”

In his final report, released last week, Cohen recommended continuing his investigation while noting that it would likely back up his “tentative conclusion” that prosecutors were not regularly viewing videos of attorney-client meetings. The most important focus of the investigation, though, would be determining how, why, and when the U.S. attorney’s office obtained phone call recordings of inmates at Leavenworth—something that Cohen hasn’t yet been asked to determine by Judge Robinson.

Cohen wrote that he was optimistic that further investigation will lay to rest any suspicions on the part of defense attorneys in Kansas and the Western District of Missouri that prosecutors are playing with a stacked deck of privileged communications. Warner, however, was skeptical of the report’s effectiveness at answering whether prosecutors regularly listened to attorney-client communications.

“For reasons unknown, the report also ignored the deliberate use of those materials against [Rokusek],” Warner said. “Nonetheless, I’m hopeful the Special Master will continue his investigation as alluded in the report’s conclusion. Maybe then widely reported abusive practices will actually be addressed.”