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Federal Prosecutor Resigns Over Misconduct

Armando Nava

Recently, I wrote about the problem of prosecutor misconduct. Now, a case out of Leavenworth prison demonstrates why we need a proactive approach to prosecutorial accountability.

The investigation began when the judge ordered a special master to look into misleading and contradictory statements made by the prosecutors. It came to light that the attorney’s office had received 188 recordings of inmates’ phone calls, 54 of which were marked private. One attorney finally confessed to listening to the private files after months of dodging accountability, and resigned as a result.

Can Prisons Record Inmates?

In short, yes.

However, inmates are afforded some protection. The Federal Bureau of Prisons releases policies in the form of program statements. Regarding the monitoring of client-attorney calls, the statement reads, “the inmate is afforded the opportunity to place an occasional unmonitored call to his or her attorney.” However, it stipulates that unmonitored calls should be limited to times when in-person meetings are impracticable. If you are being held in jail or prison, if you wish to make a confidential call to your attorney, you should find out the policies for making an unmonitored call at your facility.

Client-Attorney Privilege and Confidentiality

Client-attorney privilege allows citizens to speak with their lawyers without fear of self-incrimination. With your attorney, you can speak openly because they cannot be called to testify against you. Additionally, the duty of confidentiality means we are legally obligated to keep private conversations with clients confidential. In fact, with some exceptions, we’re not even allowed to tell your secrets after you’re dead.

Many defense attorneys consider the widespread practice of recording client-attorney phone calls to be a violation this privilege, and of the Sixth Amendment, which gives citizens a right to effective counsel when accused of a crime. While ongoing debate addresses the issue of recording these conversations, there is no doubt that releasing private conversations for prosecutors to listen to violates these rights.

Meaningful Change

In the Leavenworth case, the remorse and resignation of one attorney does not resolve the office’s lack of transparency. Events like this hurt the public’s trust in our criminal justice system. Defense attorneys can cry foul, judges can call foul, but prosecutors aren’t benched or banned from the league, so to speak, with any kind of consistency.  An experienced defense attorney who has built relationships with judges and prosecutors is well positioned to ensure compliance with the laws that protect defendants’ rights.

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