KANSAS CITY, Kan. (AP) — A court-appointed attorney investigating whether federal prosecutors in Kansas improperly listened to recorded conversations between prisoners and their attorneys testified Friday that he was stunned and disappointed when he realized months into the investigation that the U.S. Attorney’s Office was not cooperating with him.
David Cohen, an Ohio attorney who was appointed by U.S. District Judge Julie Robinson to investigate the matter, said he believed federal prosecutors were working to identify attorneys in the office who might have listened to the recordings made at the privately run Leavenworth Detention Center. He said he wanted any attorneys involved to voluntarily speak to him and optimistically believed the investigation, which started in October 2016, could wrap up by early 2017.
Instead, it took months to get any documents from federal prosecutors and those documents provided little usable information. He also was surprised to learn that the office was seeking to recuse itself from the investigation and that at least one attorney had been told not to talk to him.
Early in the investigation, Cohen said he told Tom Beall, who was acting U.S. Attorney at the time, that there were problems in the federal prosecutor’s office in Kansas City, Kansas.
“I said since I was from out of town, I could be the bad guy and they could blame everything on me so we could fix things, and (Beall) could be the hero,” Cohen said. “That’s not what happened. I wasn’t given the tools to burn out the cancer. It’s a sad state of affairs that two years later the problems are still not fixed.”
Friday’s hearing came after Federal Public Defender Melody Brannon filed a motion to have the government declared in contempt for its conduct during Cohen’s investigation. She also wants the government to pay the legal costs as a sanction. Judge Robinson did not indicate Friday when she would issue a ruling on the motion.
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.
In testimony earlier Friday, Beall insisted that his office had cooperated with Cohen and had not intentionally slowed the investigation or hidden information. He said the delay in providing requested information was due in part to his belief that he needed permission from the Department of Justice before responding to Cohen’s requests. And he said he didn’t want to commit the office to legal procedures while waiting for a new U.S. attorney to be named.
“Our effort to get things right governed (the delays),” Beall testified. “I would like to have moved faster but there was no deliberate attempt to slow walk the investigation.”
The federal public defender’s office asked for the release of 67 inmates from a Kansas federal prison and plans to seek freedom for more than 150 others because of the secretly recorded conversations between prisoners and their attorneys. Most of the federal inmates are being held on drug or firearms-related cases.
The recorded phone calls first came to light in a prison contraband case during which criminal defense lawyers discovered the privately run Leavenworth Detention Center was routinely recording meetings and phone conversations between attorneys and clients, which are confidential under the Sixth Amendment to the Constitution.
At least one Texas woman has been released early because a former prosecutor listened to recorded phone calls with her attorney. Michelle Reulet , 37, had been serving a five-year sentence for mail fraud and was not due for release until September 2020. She was freed last month.
The Justice Department has argued that there is no evidence the recordings at the prison were done for reasons other than “legitimate security considerations,” but did not elaborate on that point further.
Associated Press Writer Roxana Hegeman contributed to this story from Wichita.