masthead-logoA Reuters Report this week reveals that DEA, IRS and other Federal Agencies have been keeping what amounts to a double set of files on their investigations– to hide evidence to which Defendants may very well be entitled as Brady or Giglio.  In some cases, it may very well be justified for certain details not to be disclosed to a defendant. For example, there may be a need to protect the life of an informant, true national security issues, or an ongoing investigation, but those matters should at least be disclosed to a federal judge for her to decide what information needs to be withheld. Quoting from the Reuters article:

“Internal training documents reported by Reuters this week instruct agents not to reveal information they get from a unit of the U.S. Drug Enforcement Administration, but instead to recreate the same information by other means. A similar set of instructions was included in an IRS manual in 2005 and 2006, Reuters reported.

The DEA unit, known as the Special Operations Division, or SOD, receives intelligence from intercepts, wiretaps, informants and phone records, and funnels tips to other law enforcement agencies, the documents said. Some but not all of the information is classified.

In interviews, at least a dozen current or former agents said they used “parallel construction,” often by pretending that an investigation began with what appeared to be a routine traffic stop, when the true origin was actually a tip from SOD.”

When companies or individuals do things like this, it is called “cooking the books” or “fraud.”

Apparently, it has been going on daily in federal law enforcement since the 1990’s.  And, yet again, people seem to think that the Justice Department can investigate itself and solve the problem alone.  That hasn’t worked out very well  so far. Transparency–although promised–had been non-existent in this administration, and Holder is so into himself already that is all he can see.

DOJ seal“Defense lawyers said that by hiding the existence of the information, the government is violating a defendant’s constitutional right to view potentially exculpatory evidence that suggests witness bias, entrapment or innocence.”

“The Justice Department is reviewing the practice of parallel construction, and two high-profile Republican congressmen have raised questions about it.

DEA officials who defended the program on condition of anonymity said the practice was legal – and necessary to protect confidential sources and investigative methods. The Special Operations Division has used it virtually every day since the 1990s, they said.

Court decisions going back decades hold that prosecutors in the United States have a responsibility to turn over to a defendant any information that they or police have that is material to establishing the defendant’s guilt or innocence. The responsibility is known as the government’s Brady obligations, after the U.S. Supreme Court’s 1963 ruling in the case of Brady v. Maryland.”