Published on: Thursday, February 8, 2024

In highly unusual en banc news, the Tenth Circuit has decided following panel argument that, rather than issue a panel opinion, it will sit en banc to decide in the first instance whether a pretrial detainee's Sixth Amendment rights were violated when the United States Attorney's Office obtained a recording of a phone conversation with his attorney (see trial court ruling here). Far from an isolated incident, the office collected more than 1,400 attorney-client communications over a 7-year period—spawning sprawling consolidated litigation—and was previously held in contempt for failing to cooperate with a special master's investigation into the scandal.  The Kansas City, Kansas, federal trial court said the government employed a “wholesale strategy to delay, diffuse and deflect” during the investigation.