Class action suit over recorded calls at Leavenworth prison settles for $3.7 million

The lawsuits were sparked by disclosures that privileged attorney-client phone calls and meetings were recorded at the Leavenworth Detention Center.

by Dan Margolies, Kansas News Service

Another settlement has been reached over the illicit recordings of attorney-client meetings and phone calls at the pretrial prison in Leavenworth, Kansas.

The settlement calls for the private operator of the prison, CoreCivic Inc., and the operator of its phone system, Securus Technologies Inc., to pay $3.7 million to resolve a class action lawsuit brought four years ago by attorneys whose conversations with their clients were recorded.

On Wednesday, U.S. District Judge Steven Bough gave preliminary approval to the deal, which covers the claims of roughly 750 attorneys.

The resolution follows a similar settlement reached a year ago between the same two companies and inmates whose calls and meetings with their attorneys were recorded. That deal called for CoreCivic, formerly known as Corrections Corporation of America, and Securus to pay $1.45 million into a settlement fund for the inmates.

Both class action lawsuits were sparked by disclosures that privileged attorney-client phone calls and meetings were audio- and videotaped at the Leavenworth Detention Center, a sprawling complex that holds men and women charged with federal crimes who can’t make bail.

Lawyers regularly meet with their clients there to review their cases. The lawsuits alleged the recordings of their meetings and phone calls, which are supposed to be private, violated federal and state wiretap laws.

Ryan Gustin, a spokesman for CoreCivic, said in an email that the company was “deeply committed to being a valued part of the Leavenworth community.”

“We’ve worked hard with all parties to resolve this issue in a professional and courteous manner and maintain there was no wrongdoing on the part of our company or our professionals,” he said.

Jade Trombetta, a spokeswoman for Securus said there was no evidence the company engaged in any wrongdoing, “intentional or otherwise.”

“Our call platform allows attorneys to work with correctional agencies to classify their phone numbers as private and prevent calls to their numbers from being recorded,” Trombetta said in an email. “If phone numbers are not entered into the system as private, both parties are notified prior to call acceptance via prompt that the call will be recorded. At Leavenworth Detention Center, it appears that the attorneys’ phone numbers were not put into the system, the notification was not heeded, and the calls were recorded as designed.”

The recordings first came to light four years ago in a criminal case alleging that guards, inmates and outside parties had smuggled drugs and contraband into the facility.

In August 2019, U.S. District Judge Julie Robinson held the U.S. Attorney’s Office in Kansas in contempt for disobeying her orders to preserve documents and recordings as part of an investigation she launched after the Federal Public Defender’s office in Kansas brought the recordings to light.

In a scathing opinion, Robinson wrote there was evidence 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.

The Justice Department has appealed her ruling. Meanwhile, scores of Leavenworth inmates who were convicted of crimes are seeking to have their cases thrown out based on their claims of prosecutorial misconduct and violations of attorney-client privilege.

The class action lawsuit on behalf of the attorneys was brought by two local lawyers, Adam Crane and David Johnson. The settlement covers attorneys who represented clients detained at Leavenworth and whose calls or meetings were recorded starting in August 2013 and extending in some cases to mid-2017.

Michael Hodgson, one of the attorneys who brought the suit, said the settlement was the product of four years of “pretty contested litigation.”

“And I think more important than the money, there are some serious changes being implemented in the way attorneys and clients are able to interact while they’re incarcerated at Leavenworth,” he said.

Lance Sandage, another attorney involved in filing the suit, said the attorneys involved in the litigation “believe very strongly that we have to preserve the attorney-client privilege.”

Sandage said any unclaimed settlement funds will be distributed to Legal Aid of Western Missouri and Kansas Legal Services, “which are two organizations that are generally involved in preserving client rights.”

Dan Margolies is senior reporter and editor at KCUR. He can be reached by email at dan@kcur.org or on Twitter @DanMargolies. The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy.
Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org .

See more at https://www.kcur.org/news/2020-08-06/class-action-suit-over-recorded-calls-at-leavenworth-prison-settles-for-3-7-million.

Trial of ‘largest sexual abuse scandal in history of VA’ begins in KCK federal court

The case involving the veterans hospital in Leavenworth, Kansas, is being tried without a jury in federal court in Kansas City, Kansas, before U.S. District Judge Daniel D. Crabtree.

by Dan Margolies, Kansas News Service

A lawsuit brought by one of 100 military veterans who were sexually abused by a physician assistant at the VA hospital in Leavenworth will determine if the federal government is liable for damages in what the plaintiff’s lawyer described as “the largest sexual abuse scandal in the history of the VA.”

“Countless veterans have never gotten their day in court, have never gotten justice,” the lawyer, Daniel A. Thomas, said in opening statements at the federal trial, which began Monday. “And more importantly, not a single person from the VA has ever been held accountable.”

The physician assistant, Mark Wisner, was convicted at a criminal trial in 2017 of aggravated sexual battery and aggravated criminal sodomy and sentenced to 15 years and seven months in prison. Around 100 of his victims separately filed civil suits seeking damages against the federal government for his actions as an agent of the government.

More than 80 of them settled their lawsuits last year for a total of $7 million. But a few of them refused to settle, and the trial of the first of those cases, which got underway this morning via Zoom video conference, will determine whether the government will have to pay out additional damages.

The case is being tried without a jury in federal court in Kansas City, Kansas, before U.S. District Judge Daniel D. Crabtree. The trial is expected to last through the end of the week.

The plaintiff in the case is identified in court documents only by the fictitious name John Doe.

The government does not dispute that Wisner sexually molested veterans of America’s wars in Iraq and Afghanistan, including John Doe, by conducting unnecessary genital and rectal exams on them and then overprescribing opioids and other pain medications to make them dependent on him.

“Indeed, all who have heard about these matters cannot help but be outraged,” Justice Department lawyer Larry Eiser, who represents the government in the case, said in his opening statement. “A sexual predator in the guise of a health care provider preying upon wounded warriors – outrageous.”

Mark Wisner, a former physician assistant at the Leavenworth VA, was sentenced to 15 years and seven months in prison for aggravated sexual battery and aggravated criminal sodomy.

But the government says that it should not be held liable because Wisner’s conduct was outside the scope of his employment and because the damages Doe is seeking – payment for a lifetime of medical treatment – are excessive.

“We accept that plaintiff was abused by Mr. Wisner,” Eiser told Crabtree. “We accept his version of the facts of his encounters with Mr. Wisner. We will not dispute that he was subjected to unnecessary, ungloved genital examinations of two to three minutes in duration during each and every one of his nine encounters with Mr. Wisner over a two-year period in 2012 to 2014.”

But Eiser said that the plaintiff’s damage claims were unsupported by the evidence and “untethered to reality” because they asked the government to pay for treatment of mental health conditions and other ailments that preceded the plaintiff’s encounters with Wisner.

Thomas, the plaintiff’s attorney, said that his client’s PTSD was exacerbated by Wisner, whom he said was the subject of numerous complaints that the VA failed to follow up and investigate.

One of Wisner’s patients was admitted to a psychiatric unit after he was overheard threatening to kill Wisner, Thomas said. That patient later killed himself.

“They just didn’t believe the victim,” Thomas said. “It’s a scenario that played out repeatedly with Wisner’s victims over a period of years. One hundred victims over six years.”

Earlier this year, another federal judge, Carlos Murguia, threw out the plaintiff’s claims against the government for negligent supervision of Wisner. Murguia found that the plaintiff had failed to assert that claim during an earlier, administrative part of the case.

The case was reassigned to Crabtree in February after Murguia announced his resignation from the court following his public reprimand for sexual harassment and workplace misconduct.

Dan Margolies is senior reporter and editor at KCUR. He can be reached by email at dan@kcur.org or on Twitter @DanMargolies. The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy.
Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.

See more at https://www.kcur.org/news/2020-07-06/trial-of-largest-sexual-abuse-scandal-in-history-of-va-begins-in-kck-federal-court.

Public defender says government owes it legal fees for misconduct in Leavenworth tapings case

by Dan Margolies, Kansas News Service

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. Kansas News Service stories and photos may be republished at no cost with proper attribution and a link back to kcur.org. See more at https://www.kcur.org/post/public-defender-says-government-owes-it-legal-fees-misconduct-leavenworth-tapings-case