The latest scuttlebutt involving those rascal warriors of law and order is trickling out of Leavenworth, Kansas, and is it ever a doozy. Newly-confirmed U.S. Attorney General Jeff Sessions has his hands full with not only a public relations nightmare, but the possibility of hundreds of criminal cases tainted with unethical practices, that may be called into question or even overturned.
In an August 2016 blog post by Slate, Corrections Corporation of America (CCA), who runs eighty-five facilities in the U.S., was exposed as taking part in the illegal activity of videotaping attorneys and clients and then turning the tapes over to the U.S. Attorney’s Office in Kansas. Who is CCA, you may ask? Oh, well, they had gone through a rebranding process since last summer when a court-appointed investigator started nosing around. They now call themselves CoreCivic, and they are at the heart of a rather unseemly investigation.
Whatever moniker they bandy about, they are so busted that Slate reported how their lying, cheating ways were foiled by one lone defense attorney with a list of clients residing in the Leavenworth facility: The startling existence of the video recordings surfaced earlier this month in connection with seven people charged in a sprawling contraband meth ring within the prison. The prison turned over some tapes to comply with a grand jury subpoena.
A private attorney, Jacquelyn Rokusek, with a client implicated in that case was shown the taped conversations by federal prosecutors seeking to prove she had a conflict of interest.
As Americans, we want to believe in the American judicial system. Yet recent accounts of the misuse and abuse of our nation’s top law offices, by the most prominent legal minds, have citizens scrambling to sort out what is right, wrong and who to blame. We imagine the hallowed halls, with ivory floors, echoing centuries of legal arguments that framed the rise of the greatest nation in the world, in just a few hundred years, to be teeming with preeminent counselors of law, with ethical standards above reproach. We are fallaciously secure in our belief that prosecutors and defense attorneys, with respectful courtroom dress and demeanor, meet underneath the scales of our blind justice, following the stated rules in the U.S. Constitution, while working out the details in front of those black-robed impartial judges. And those judges would be overseeing all with greatest and intensity.
And we would be dreaming.
Let’s face it: America wants Atticus Finch. Finch, you may remember, is a fictional character in author Harper Lee's Pulitzer Prize-winning novel, To Kill a Mockingbird circa 1960. Despite the Pulitzer, Mockingbird has been deemed unfit for students in some public schools. But I digress.
Instead, we seem to have been staring in the face of Jim Carey’s character, Fletcher Reede, in the slapstick film, Liar, Liar.
In recent weeks, the Department of Justice has been in the news with the Trump administration slashing and burning nearly every appointed U.S. attorney anointed by the outgoing Obama – and with good reason following the Sally Yates affair. You may remember, one U.S. Attorney from New York, Preet Bharara, refused to leave and made a fuss about it on Twitter, and burned his fifteen minutes of fame in one news cycle, leaving nary an ash.
And so, it seems that going all-out rogue is the way the Department of Justice is practicing law these days. Reports have shown that the DOJ, in cahoots with CoreCivic, the private prison company managing the Leavenworth Detention Center, and Securus Technologies providing the system’s communications, have been routinely and illegally monitoring and recording constitutionally protected rights of attorney-client privilege.
Read that last sentence again – I’m not making this stuff up.
That darn Sixth Amendment, the one that guarantees a right to counsel and privacy, genuinely gets in the way of the government making a case stick. But in the Leavenworth instance, we aren’t talking about one criminal case and one crabby, over-worked defense attorney that has been tricked. Nope, how about over seven hundred attorney-client meetings captured on tape—now that is something to Tweet about, Mr. Bharara.
It appears that the prosecutors building their criminal case against the meth dealers inside the facility assumed that Rokusek would play nice and fold her winning hand, letting the good guys win.
Well, that just did not happen. Instead, as The Daily Beast (of all people) delved into Ms. Rokusek’s role in these shenanigans, and has emerged as a scrappy street-fighter for the 6th Amendment:
Jackie Rokusek … said 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.
Oops. Enter Mike Warner, former first assistant U.S. Attorney that oversees the district in which Leavenworth occupies. He had a few choice tidbits to add from his time of sweat, blood, and tears in the Department of Justice:
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 for 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. “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.
American’s have witnessed, time and time again, this culture that has permeated our rules of civility —where winning is achieved through lying, cheating, stealing—a take no prisoners approach and as long as the desired outcome is accomplished. This do whatever it takes attitude turns the Sixth Amendment and societal rules on its head. Fletcher Reede in the flesh, indeed.
These days, if you don’t like to lose fair and square, throw a tantrum—or conveniently forget what you were taught in that fancy law school in which you are likely still paying the student loans.
So perhaps it’s time to remind those dear men of the law – counselors -- who swore an oath to uphold the Constitution of the United States that Americans expect you to follow through on your noble and honorable promise.
Our country deserves better than those of you who believe we will continue to accept the mantra, “as long as we win, who cares? “The simple truth is, there are those of us who do still care.
Many Americans do cherish their rights and liberties and don’t like people tinkering with the system.
So, with cautious optimism and a little bit of that old-fashioned Yankee rebellion, look to U.S. Attorney General Jeff Sessions to take a firm hand to his charges, and make the people’s Department of Justice one we can respect and trust, without embarrassment, rancor, or smoke and mirrors from the past.
Atticus Finch, where are you when we need you?
