09 August 2013

Using surveillance data in criminal investigations undermines the rule of law

From Reuters:
A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.
The unit is the Special Operations Division (SOD).

Agents were instructed to omit any references to the SOD from investigative reports, affidavits, any court proceedings, and in discussions with federal and state prosecutors and attorneys, state and local officials and task forces, and their foreign counterparts. Here's an example from a former federal agent:
 "You'd be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.' And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it," the agent said... After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as "parallel construction."
It should also be troubling when a former federal judge says that she had never heard of such a program.

I see (at least) two problems with this program. The first seems obvious; the second, perhaps less so. Both are equally troubling.

First, this program seems to openly encourage agents to file misleading information with the courts. Judges rely on information submitted in affidavits for a whole host of reasons, including probable cause determinations that can go to the heart of whether an initial search was valid. When this information is inaccurate, judges rule on critical issues with less than complete information. This alone should be enough to call into doubt the legitimacy of this program.

Second, and perhaps more insidious, is that the scrubbing of SOD sourcing effectively denies a defendant the possibility of exculpatory evidence, as required by the Supreme Court's decision in Brady v. Maryland, 373 U.S. 83 (1963). Let's use the example above cited by the former agent. Suppose that, in addition to the intelligence to "be at a certain truck stop at a certain time and look for a certain vehicle," there was evidence that the driver was coerced into driving the vehicle--potentially at gunpoint, or based on a threat to someone else (i.e., a family member). This could be exculpatory evidence--but because the agents scrubbed SOD as the source, the prosecutors would never see this evidence. And then they could not provide this evidence to defense attorneys--because they would never know about it. Even if the defense blindly asked for such evidence, there is no record that it ever existed. As a result, it seems highly unlikely then that any court could find that the prosecutor withheld the evidence. Thus, no Brady violation.

In essence, defendants are being convicted based on evidence that they don't know ever existed. The prosecutors are unwitting accomplices. And the conviction by a unknowing jury or judge puts an official stamp of approval on the unseemly procedure. At its core, this program undermines the rule of law and raises serious constitutional doubts as to whether anyone convicted as a result of such evidence had a fair trial.
Post a Comment