A 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.

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Another panel of the United States Court of Appeals for the Ninth Circuit hits a home run for the Constitution!  After failures of every prior state and federal judge to act in the face of clear evidence, the Ninth Circuit has reversed a denial of a writ of habeas corpus and required release - or a new trial - for a criminal defendant because of a prosecutor’s Brady violation.

Authored by Circuit Judge William Fletcher for the panel including Circuit Judge Harry Pregerson and District Judge Mark Bennett (all pictured), the panel held (emphasis added) :

Gilbert Aguilar was convicted of first-degree murder after a jury trial in Los Angeles County Superior Court.  A young Hispanic man got out of a white Volkswagen Beetle and shot John Guerrero while Guerrero’s car was stopped at a stoplight. The only question at trial was the identity of the shooter. Aguilar’s defense was that another young Hispanic man, Richard Osuna, had shot Guerrero.

The prosecution introduced evidence that a police dog named Reilly had alerted to a “scent pad,” showing that Aguilar’s scent was present on the

front passenger seat of the white Volkswagen.

 The prosecution did not disclose to the defense that Reilly had a history of making  mistaken scent identifications, 

 even though it had stipulated to Reilly’s mistaken identifications in a different trial several months earlier.

    Following the stipulation, that court had excluded evidence of Reilly’s scent identification from the earlier trial.

     Reilly’s scent identification was the only evidence that tied Aguilar to the white Volkswagen.

Putting the scent identification to one side, the evidence against Aguilar was weak. No clear motive for Aguilar to shoot Guerrero was ever suggested at trial. No physical evidence tied Aguilar to the crime. The faces of Aguilar and Osuna are very similar, but Aguilar is older and, at the time of the shooting, was significantly taller. A number of eyewitnesses identified Aguilar as the shooter at trial. Several of those witnesses had earlier given a quite different physical description to police – one that matched Osuna in age and height rather than Aguilar.

The evidence suggesting that Osuna was the killer was substantial. Osuna’s brother was shot several days before Guerrero was shot. Two witnesses testified that Osuna jumped into a white Volkswagen Beetle to pursue Guerrero’s car as it drove past.  One of them testified that Osuna did so in the belief that the “fools” in the car had shot his brother. That same witness testified that Osuna told her a short time later that he had shot a “fool.” Even so, Osuna was never investigated as a suspect in this case. Indeed, the prosecutor in this case expressly told the police not to pursue an investigation of Osuna.cantly taller. A number of eyewitnesses identified Aguilar as the shooter at trial. Several of those witnesses had earlier given a quite different physical description to police – one that matched Osuna in age and height rather than Aguilar.

Read on in the full decision and it only gets worse. Read More »

Today’s BLOG of the Legal Times reports yet another failure by a Bar Association to hold a federal prosecutor properly accountable for falling far below the ethical standards applicable to those who wield the extraordinary power to indict, convict, and imprison others.   Despite a judge’s findings that Assistant United States Attorney Steven Snyder had a “history of repeated, blatant Brady violations” in a related case, Snyder received only

an informal admonition from the D.C. Office of Bar Counsel. He was accused of making false statements to a judge in the early stages of a group of murder and obstruction of justice prosecutions. It’s an outcome one defense lawyer involved in the cases called “ludicrous,” given a judge’s earlier findings that Snyder committed other serious ethics violations.

Bar counsel found Snyder violated the rules of professional responsibility by telling a judge he didn’t know of any psychiatric conditions related to a key government witness. In fact, bar counsel said, Snyder hadn’t searched the witness’ juvenile records, which he knew existed, and was aware of other information about the witness’ mental health. An informal admonition is the lightest form of discipline available.

Those earlier findings of serious ethical violations in the related case were not even mentioned by Bar Counsel, Gene Shipp. Read More »

We previously applauded the Ninth Circuit panel of Chief Judge Kozinski, and Judges Farris and Bea,  for the Panel’s decision and its very clear instructions to the district court on remand for a hearing on the government’s misconduct in this prosecution which has imprisoned a woman for 22 years.

On Wednesday, Defendant Milke moved to disqualify the Maricopa County Attorney’s Office from the case.

The disqualification motion relies heavily on the Ninth Circuit’s opinion in Milke v Ryan. and Chief Judge Kozinski’s concurrence (with his majority opinion). It argues strongly that the potential for a DOJ investigation creates a conflict of interest for the prosecution.  The filing also notes, in FN 3, that the prosecution has announced plans to file “a motion in limine to preclude ‘any mention’ of the impeachment evidence against Saldate, the investigator whose misconduct infected the case. The government characterized this admissible impeachment evidence as ‘repeated attempts to sully his reputation.’!

It’s hard to imagine how there could be a retrial where that impeachment material was ruled inadmissible.  Hopefully, things won’t get that far.

Arizona’s Maricopa County district judge conducted a hearing on August 1 in which it is plain that she is taking Saldate’s misconduct more seriously-as she should-finally. Read More »