Defense lawyers in the Bunkerville standoff case were stunned last month to receive recorded phone calls between co-defendant Blaine Cooper and his Oregon defense lawyer from federal prosecutors who had previously denied possessing any attorney-client privileged jailhouse calls.
Prosecutors shared 12 recorded jail phone calls between Cooper and Portland lawyer Krista Shipsey with defense lawyers for co-defendants Cliven Bundy, his two sons and Ryan Payne, who are now on trial in federal court in Las Vegas.
Cooper has pleaded guilty to federal conspiracy charges in both the 2014 standoff with federal agents near Bunkerville, Nevada, and in the 2016 Oregon armed takeover of the Malheur National Wildlife Refuge. He is cooperating with the government and was a government witness in this year's Oregon trial.
The recordings captured calls Cooper made to his lawyer while in custody at the Las Vegas City jail between Jan. 22 and Feb. 17, 2017. The conversations related to the Bunkerville case, including discussions about preparation, the criminal allegations and strategy, according to court documents.
"I didn't know, nor did Blaine," Shipsey said in a recent interview. "It's extremely concerning. We were assured those conversations would be confidential."
Assistant federal public defenders Brenda Weksler and Ryan Norwood, who represent Payne in Nevada, have called for the dismissal of the case, alleging the prosecution has acted with "flagrant misconduct," based on the "government's misrepresentations regarding the most sacrosanct of client communications."
Shipsey also last week asked to review copies of the recorded calls with her client that were shared.
"It is negligence at its best and deliberate indifference to a defendant's substantive rights at its worst," Weksler and Norwood wrote in motions to the court.
Payne's lawyers cited the sharing of Cooper's privileged calls to his attorney with co-defendants as just one in a series of discovery blunders by prosecutors in the Bunkerville case. In the days leading up to trial and even once trial started, prosecutors have been ordered to turn over emails and other evidence -- regarding the FBI's use of a camera outside the Bundy Ranch, FBI surveillance of the residence and threat assessments made before the 2014 standoff -- that they previously did not share or said didn't exist.
Prosecutors this week countered that even were the defense to show the government violated an attorney-client privilege by sharing Cooper's calls, Payne's lawyers have failed to show that Payne or any other defendant on trial has been prejudiced in any way by the sharing of the calls or that their ability to defend themselves has been impaired.
A so-called taint team of FBI agents, set up to act separately and apart from the FBI agents on the prosecution team, reviewed all recorded jail calls and identified relevant nonprivileged calls. They then provided to the prosecution team a summary of the content of those calls, according to Assistant U.S. Attorney Nadia Ahmed.
The taint team further identified privileged calls between defendants and their lawyers. Once they determined a call was between a defendant and their lawyer, the agents on the team "did no further review, did not listen to the call and therefore did not summarize the contents," Ahmed wrote in a response.
Those privileged calls were entered into an Excel spreadsheet and characterized as "minimized," meaning the agents did not further review the call's contents, Ahmed wrote. The FBI agent on the taint team classified Cooper's calls with his lawyer under the name "Christa," presumably referring to defense lawyer Krista Shipsey.
Yet the prosecution team shared Cooper's privileged calls with his co-defendants and their lawyers in September. Last month, Payne's lawyers discovered them among hundreds of phone calls the government turned over relating to potential trial witnesses.
Federal prosecutors say they haven't listened to the Cooper calls.
"To date, no one on the prosecution team has listened to Mr. Cooper's privileged attorney-client calls or was aware of such calls," Ahmed wrote in her response filed late Monday night. "No one on the prosecution team intends to listen to the attorney-client calls. The prosecution cannot direct the jail not to record such calls or force the jail to review them and weed such calls out before providing them to the government."
Payne's defense lawyers continue to question if the government has obtained recorded phone calls between Payne and his lawyers. They had initially asked prosecutors if they had any recorded attorney-client phone calls involving Payne in October 2016 after learning of another attorney's calls with an inmate at the Nevada Southern Detention Center in Pahrump, Nevada, that prosecutors had obtained in an unrelated federal criminal case. By mid-November 2016, federal prosecutors in the Bunkerville case responded to Payne's lawyers that the government had "no recordings of conversations between Payne and his counsel or between Payne's co-defendants and their counsel."
"It has become abundantly clear that the government and the agents who they are supervising concerning these matters, are not taking the necessary precautions to ensure that attorney-client phone calls are not recorded or disbursed to co-defendants or government counsel," Weksler wrote in a court filing.
Nevada's U.S. District Judge Gloria M. Navarro has yet to rule on Payne's motion to dismiss stemming from the sharing of privileged attorney-client jail calls.
The recording of attorney-client jail calls is a violation and a big deal, according to Oregon prosecutors and defense lawyers.
Cooper, whose calls were recorded with his attorney and shared, would have standing to allege his Sixth Amendment right to effective assistance of counsel was violated, Portland criminal defense lawyer Lisa Ludwig said.
Kevin Sali, a Portland criminal defense lawyer not involved in either the Oregon or Nevada cases, said he believes it will be harder for the rest of the Nevada defense team to show Payne or the others on trial now have been harmed. The government's use of a special taint team to review calls is a common practice. And it will be hard to show how Payne or Cliven Bundy or his two sons were prejudiced by having recorded jail calls involving Cooper, who is not on trial and is cooperating with the government.
The federal government's possession of attorney-client jail calls arose in the high-profile federal prosecution in Oregon of Joey Pedersen in a quadruple murder case and led to a stinging rebuke by a federal judge in 2014, but in that case the investigating detective kept recordings of the privileged attorney-client calls. A similar misstep occurred in a federal case in Las Vegas in October 2016, where a federal prosecutor admitted she inadvertently obtained recordings of confidential jailhouse phone conversations between a bank robbery defendant and his lawyer.