Legal battle over taped phone calls at Leavenworth prison continues
Kansas Democrat Barry Grissom has built his 2020 Senate campaign on his record as a crime-fighting U.S. attorney from 2010 to 2016.
But allegations of lawless behavior by federal prosecutors under his charge — outlined in last week’s order by a federal judge holding the U.S. Attorney’s office in Kansas in contempt — threatens to derail the candidacy he launched less than two months ago.
While Grissom’s name doesn’t appear in U.S. District Judge Julie Robinson’s scathing 188-page ruling, the case raises major questions about his oversight of the office.
Federal prosecutors in the Kansas City, Kansas, office kept recordings of confidential phone calls between defense attorneys and criminal defendants at a privately run prison in Leavenworth as far back as 2011, according to the order.
Their decision to access the recordings, made by the contractor operating the prison, could endanger more than 100 cases as defendants seek to throw out indictments or appeal convictions.
According to data kept by the Federal Public Defenders, the calls of more than a quarter of the inmates still in the jail as of October 2018 had been accessed.
In one case, a defendant’s 35-year prison term for drug trafficking was reduced to time served after questions surfaced about whether U.S. attorneys listened to his conversations with lawyers .
Grissom, a Johnson County resident, primarily worked out of the Kansas City, Kansas, office rather than Wichita or Topeka during his tenure as U.S. attorney. He has repeatedly said he was unaware of the alleged behavior of subordinates.
When he launched his campaign in July, Grissom said the attorneys would have been fired had he been aware of the alleged conduct. Following Robinson’s order this week, he expressed outrage, but also distanced himself from the scandal.
“I remain proud of the many dedicated prosecutors and law enforcement officials I came to know during my time as U.S. Attorney, but I’m outraged to learn that a select few purposefully broke the law, and violated their ethical obligations and the standards I expected from professionals in my office. These rogue prosecutors need to face repercussions,” Grissom said in a statement.
In a short phone interview Friday, Grissom emphasized that these prosecutors did not disclose their use of the recordings to him or other senior staff.
“You trust your people. They’re officers of the court. You believe they will abide by the federal rules of criminal procedure… and if they don’t, I don’t know how you can find out that they misrepresented something to you,” he said.
Grissom said that the prosecutors should have disclosed the material to defense attorneys as part of the discovery process.
“I can assure you if someone had given up their recording and that lawyer heard him- or herself talking to their client, they would have immediately called me and then we would have known. But that never happened because that information was never shared with defense counsel,” he said.
‘Not looking good’
The revelations of the recordings surfaced just months after Grissom departed the U.S. Attorney’s Office in April 2016.
Grissom is not mentioned by name in Robinson’s ruling. And much of the ruling is aimed at the U.S. Attorney’s Office’s attempts at covering up or impeding the investigation into the recording matter, actions that took place after Grissom left the office.
But the overall case strikes at the core of Grissom’s credentials, and questions about his oversight of the office are likely to follow him throughout the campaign.
“This was an incredible breach of trust that will hurt for a generation,” said former U.S. Rep. Nancy Boyda, his Democratic primary opponent. ”As U.S. Attorney, it was Barry’s job to set the standard of sound legal practice. That’s what leaders do.
“I will withhold judgment until these trials are completed, because that’s how our justice system is supposed to work. Right now, though, it’s certainly not looking good for Barry.”
Republicans, who are prepared to hammer Grissom for the scandal if he wins the nomination, say claims that he was unaware won’t shield him from criticism.
“If your defense is that you’re incompetent, that’s not a very good defense,” said David Kensinger, a GOP strategist who has managed statewide campaigns for retiring Sen. Pat Roberts and former Gov. Sam Brownback.
“If this compromises any of these convictions, he’s cooked,” Kensinger said.
David R. Cohen, the special master appointed by Robinson, said he did not investigate Grissom and has no knowledge of any role he played in the alleged misconduct.
But Grissom’s assurances that the scandal does not reflect upon his leadership of the office are undercut by his former first assistant U.S. attorney.
Mike Warner, who served in the role from 2010 to 2013, testified in an evidentiary hearing that Grissom was “very much aware of complaints and problems about heavy-handed, for lack of a better word, unfair prosecutorial patterns, behaviors in the Kansas City, Kansas, criminal division.”
Warner did not testify that Grissom or other senior officials were aware of the attorneys’ access to confidential phone calls. But he accused Grissom of refusing to confront prosecutorial misconduct.
“It was essentially an inmates-run-the-jail-type office. And that’s why I quit. And there was no support from the U.S. attorney, basically wanted to stick his head in the sand and go out and get his picture taken and maybe run for office someday, I don’t know,” Warner said.
Full picture missing?
Despite his surprise at the use of the phone recordings, Grissom said that he did take steps to combat heavy-handed tactics in the Kansas City, Kansas, office, including implementing a policy that required prosecutors to seek approval from supervisors before filing certain motions.
“Mike doesn’t show a full picture. There were measures that we took,” said Grissom, who attributed Warner’s criticism to a personal grievance.
Grissom said he directed Warner to address what he saw as overly aggressive tactics by prosecutors, but that the two came to an impasse over how to handle the problem.
“I don’t want to get into personnel issues, but Mike obviously has an ax to grind because we asked him to step down from his management position.”
In her ruling, Robinson called Warner’s testimony credible and relied on it, along with other evidence, to corroborate another witness’ statements about prosecutorial misconduct.
In an email to The Star, Warner said Robinson’s contempt order reflects the consequences of Grissom’s unwillingness to rein in his prosecutors.
“Simply put, (Grissom) placed his own interests ahead of his obligation to serve the public and insure a fair system of justice. Multiple defendants, many no doubt minorities, are still unfairly incarcerated as a result. Given that (Grissom) was informed by myself and others like defense attorneys, law enforcement and judges, about prosecutorial misconduct virtually every day he was in office, makes any assertion of his ‘not knowing’ a self-serving lie,” Warner said.
In a second email, Warner rejected the idea that he’s motivated by a personal grievance. He said that over the course of three years it became clear to him that Grissom preferred not to be pressed about the problems in the office, which prompted Warner’s decision to resign.
“I was a career prosecutor with the courage to confront and try to change prosecutorial misconduct. I strongly believe in due process, constitutional rights and a defendant’s fair right to a fair trial. Grissom, expressed bluntly, was a patronage appointee, and ultimately more interested in personal political goals than fair treatment of defendants,” he said. “Although I liked Grissom as a person and considered him to be a friend for several years, I lost all respect and trust in him as a US Attorney.”
Grissom’s name appears in an exhibit filed in January, a written inventory of cases where a defendant’s calls were accessed and the names of U.S. attorneys involved in those cases.
Grissom’s campaign said that his name’s appearance on the document was likely caused by a clerical error. “Barry was absolutely not the prosecutor on the case,” said Grissom’s campaign manager, Jerid Kurtz.
Fallout from the investigation into the Kansas City, Kansas, office has already had an impact on criminal cases.
Michelle Reulet, a Texas woman who was serving five years after pleading guilty to mail fraud, was released in 2018 in the middle of her sentence after it was learned that a now-retired assistant U.S. attorney listened in on and took notes of her conversations with lawyers.
Karl Carter, charged with several drug-related counts, had his indictment dismissed this week as a result of the recording scandal.
It has tainted the credibility of the U.S. attorney’s office in Kansas, said Patrick McInerney, a criminal defense attorney who previously worked in the U.S. attorney’s office in Western Missouri.
“It’s devastating. It’s hard to overstate the damage,” McInerney said. “The core of the misconduct had to do with something that was sacrosanct: attorney-client privilege.”
McInerney said Robinson’s order makes clear that the behavior wasn’t confined to one case or attorney.
“If Barry Grissom had actually known about that conduct I have a very hard time believing he wouldn’t have terminated everybody involved,” he said. “That being said, there were people in supervisory roles who knew about this, so it raises questions about the culture of the office.”
Robinson’s ruling on Tuesday includes a section devoted to what she called “internal dysfunction.”
“The record illustrates how deeply the Kansas City prosecutors distrusted current and past management, to the point of insubordination,” Robinson wrote.
In 2018 testimony, Erin Tomasic, a prosecutor who was terminated after admitting to listening to attorney-client phone calls, blamed her own prosecutorial misconduct on the office’s dysfunction.
“Everyone operated like a silo in the office and did their own thing,” said Tomasic, who testified that prosecutors kept thorough records of their communication with one another because of the office’s culture of infighting.
That infighting, Tomasic said, affected her training.
Tomasic testified she was cleared to work independently earlier than most prosecutors because Warner had instructed her not to speak to multiple attorneys, including her assigned mentor, Sheri Catania.
Furthermore, she said she never received formal training on discovery matters from the National Advocacy Center and resorted to teaching herself online because prosecutors became suspicious when she went to Warner with questions.
Warner testified that he had been instructed by Grissom not to let Tomasic “become one of the mean girls,” a reference to more heavy-handed prosecutors. Grissom confirmed that he didn’t want Tomasic to pick up bad habits of other prosecutors.
When Tomasic inadvertently obtained a recording of an attorney-client phone call in an early case, she said Warner instructed her to alert the defense attorney.
But in a lunchroom conversation later on, another prosecutor told her “if the defense attorney is stupid enough to make a call on a recorded line, then that’s on them, and you have no obligation to alert them.”
Tomasic said she followed that advice for the remainder of her time in the office.
Grissom said he’s frustrated that the impermissible behavior in the Kansas City, Kansas, office has overshadowed work done by his other offices in the state to combat drug trafficking and prevent bombings in Wichita and Fort Riley.
But he downplayed the impact that the controversy will have on his campaign for Senate.
“I think in the long run this will not affect my success at running because I believe people are going to look at the entire picture,” he said.