re: Recreating an Investigation (DEA/NSA story)

[cthulu2016]

I want to talk about one aspect of the Reuters DEA story.

http://www.democraticunderground.com/1014557159

http://www.reuters.com/article/idUSBRE97409R20130805

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges. The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial.

First, the phrase "that some experts say" is complete Bullshit. That's like saying that "some experts say" that water is wet. The government lying about how it came to arrest somebody violates a defendant's Constitutional right to a fair trial. For starters, it precludes considering whether the evidence was collected in a Constitutionally permissible manner in the first place!

Now then, what are we talking about here?

Though dressed up with the glitz of super-computers and international intrigue, what we are talking about is really first cousin to a fairly standard feature of crime dramas where the cops break the law a lot in a "good cause".

A cop has "a hunch" that Some Guy is the Central Park Strangler. But you cannot get a search warrant based on a hunch. So he climbs over the guy's fence to snoop around and finds some evidence that a body had been there.

But you couldn't convict based on that. The whole investigation begins with an illegal search. So now the cop has to concoct probable cause after the fact. "I now know there's probably a body there so the puzzle is how to gain LEGAL access to where the evidence is." He might start a fire in the backyard (firemen don't need a warrant), or phone in an anonymous tip to his own police station, etc..

The idea is to cut the real beginning of the chain out of the story. The fake investigation is real. You do interview the people, get the warrant, run the tests, etc., to get the same information via clean methods. It's a legitimate investigation except for the one detail that what started it was not a lucky break, but rather breaking into somebody's yard to snoop around.

A defense attorney would want the real story, among other reasons, so that she could challenge the Constitutionality of the whole investigation.

This happens with immunity sometimes. You compel someone to testify by giving him limited immunity, meaning that his testimony itself cannot be used against him. (As opposed to full immunity where he can never be charged with the crime no matter what.) So the guy says, "Me and Jimmy the Hat grabbed this guy off the street at 27th and Main at 1:30 am on Tuesday and took him to address X and killed him."

The police could now interview everyone who was near 27th and Main at that time and might recognize the guy, trying to independently build a case against the guy. But they are using the guy's testimony against him. A conviction will not hold up. They wouldn't have known who to interview without the immunized testimony. It is not that an investigation *could* have theoretically caught someone without the unusuable evidence, but that it *would* have.


Now, let's say that instead of covering up an illegal search, a cop was "recreating" an investigation to cover-up an embarrassing search. Does that change the equation?

No. The legality of the search in the second instance is assumed, not determined in the trial. Who is saying it was legal, but embarrassing? The police? No, the defense has to be allowed to examine and challenge the real starting point of the investigation.

And in addition to that we have the general principle that the government cannot lie to a judge or be party to the deception of a judge, and the practical fact that a defense always needs to follow along the real investigation.

Say they had someone who placed the suspect at the scene but who would make a lousy witness. So they "recreate" the investigation working backward using the bad witness information to locate other ways to duplicate his testimony. Sounds harmless, phrased that way.

Another way to phrase it is, "The State knew about an eye-witness and hid his existence from the defense." Doesn't sound so harmless, phrased that way.


In summation... fuck all of this. It is sad and scary stuff.

[dkf]

1. Nail right smack dab on the Head.

This is an egregious violation of the 4th amendment, but the revelation that they are hiding the poisoned search is beyond the pale.

Wow. Just wow.