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The Courts

DEA Presentation Shows How Agency Hides Investigative Methods From Trial Review 266

Posted by Unknown Lamer
from the inventing-probable-cause-for-fun-and-profit dept.
v3rgEz writes "CJ Ciaramella stumbled upon some interesting documents with a recent FOIA request: The DEA's training materials regarding parallel construction, the practice of reverse engineering the evidence chain to keep how the government actually knows something happened away from prosecutors, the defense, and the public. 'Americans don't like it,' the materials note, when the government relies heavily on classified sources, so agents are encouraged to find ways to get the same information through tactics like 'routine' traffic stops that coincidentally find the information agents are after. Public blowback, along with greater criminal awareness, are cited among the reasons for keeping the actual methodologies beyond the reach of even the prosecutors working with the DEA on the cases."
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DEA Presentation Shows How Agency Hides Investigative Methods From Trial Review

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  • by icebike (68054) on Monday February 03, 2014 @08:53PM (#46146473)

    And defense attorneys had better step up their game and put state, county, and federal officers on the stand and start asking just how it is that they just HAPPENED to stop a certain car or visited a certain street corner at a specific time of day. Then ask them point blank if it was a case of parallel construction. Ask them to turn over the names of their CIs, even if its in closed court.

    Force them to Commit Perjury. Best case you get your current case dismissed, even if you never get off the radar of the local law.

    (I doubt the DEA is going to use secret sources of evidence or parallel construction to ensnare Joe Sixpack trying to score some recreational drugs. The fish will have to be worth the effort and the risk for the DEA to use this tactic themselves, but a casual word to the local sheriff might be used more often than you think.)

  • by ciurana (2603) on Monday February 03, 2014 @09:07PM (#46146561) Homepage Journal

    Hi.

    Here's the complete presentation deck without the annoying reader:


    for ((n = 1;n <= 276;n++))
    do
            wget "https://s3.amazonaws.com/s3.documentcloud.org/documents/1011382/pages/responsive-documents-p$n-normal.gif"
    done

    Cheers!

  • by danheskett (178529) <danheskett@NoSPAm.gmail.com> on Monday February 03, 2014 @09:14PM (#46146591)

    This has almost no relevance to the discussion. Jacobsen holds that the evidence must be obtained not just plausibly but in actual fact by a person unconnected with the government or a government official. The intent is that private citizens who find evidence are not subjected to the 4th amendment or due process. When that evidence is found by a private individual, he or she can turn it over to the police and it is now "clean" and creates probable cause.

    You can't apply Jacobsen to the NSA or DEA because they are clearly "a government official" and acting as an agent therefore.

  • by Anonymous Coward on Monday February 03, 2014 @09:26PM (#46146655)

    You're missing the point which is that the DEA *knows* the evidence can't be used in court. The DEA instead uses the evidence to surveil the person they are after to later catch them in the act or catch them in possession or whatever. In other words - the illegal spying just lets them know that criminal acts are going on and allows them to follow up with methods that are legal to actually catch the person in the act.

    There is legal precedent establishing that this *may* be legal (quote from a techdirt article earlier today):

    It appears that much of the DEA's arguments here rely on the Supreme Court's ruling in 1938 in Scher v. United States, in which a law enforcement agent was told some things by a source, and used that information to find and arrest the defendant handling whiskey (during Prohibition). The court said that how the agent found out about the information doesn't matter, so long as the agent saw illegal acts himself. And thus, the Supreme Court "enabled" the idea of parallel construction. That case pops up repeatedly throughout the documents, basically telling DEA agents: expect information to come from intelligence sources, but do your best to never find out why they know this stuff.

    To me, the contexts are different (a source coming forward vs. someone being illegally spied on) as well as over 75 years passing, so I think this is ripe for being re-tested in court. I hope the courts find this practice to be highly illegal.

  • by raymorris (2726007) on Monday February 03, 2014 @09:33PM (#46146701)

    They are officers of the court, and not of the executive. This was made explicit by ex parte Garland shortly after the civil war.

  • by kbonin (58917) on Monday February 03, 2014 @09:40PM (#46146735) Homepage

    Or just use: https://s3.amazonaws.com/s3.do... [amazonaws.com]

  • by Etherwalk (681268) on Monday February 03, 2014 @10:19PM (#46146979)

    "Due process of law" is all that seems to be required, and in practice that means that discovery has to proceed in a normal manner and the prosecution may bring as much or as little evidence against you as they may require to convict you, no more or less. They must produce this evidence, and how they got it; any evidence they don't bring to court, they don't have to explain.

    They have an obligation to make evidence, including exculpatory evidence, available to the defense. Some of them don't--that's prosecutorial misconduct and gets convictions overturned when the courts catch them.

  • by Frobnicator (565869) on Monday February 03, 2014 @10:53PM (#46147117) Journal

    I'd love to see where you see that in the US Constitution, because no such specific language exists as far as I know. "Due process of law" is all that seems to be required, and in practice that means that discovery has to proceed in a normal manner and the prosecution may bring as much or as little evidence against you as they may require to convict you, no more or less. They must produce this evidence, and how they got it; any evidence they don't bring to court, they don't have to explain.

    That's okay, not everybody went to law school.

    Due Process, as currently enumerated:
    1. An unbiased tribunal.
    2. Notice of the proposed action and the grounds asserted for it.
    3. Opportunity to present reasons why the proposed action should not be taken.
    4. The right to present evidence, including the right to call witnesses.
    5. The right to know opposing evidence.
    6. The right to cross-examine adverse witnesses.
    7. A decision based exclusively on the evidence presented.
    8. Opportunity to be represented by counsel.
    9. Requirement that the tribunal prepare a record of the evidence presented.
    10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.

    Got that?

    Next up, the SCOTUS clarified the requirements (and some consequences) in Brady V Maryland [wikipedia.org]. Coupled with that is a body of rules such as Brady disclosure [wikipedia.org]. In the past few decades judges have slowly gotten lax on Brady rules, but that has picked up sharply in the past year or two.

  • by Ungrounded Lightning (62228) on Monday February 03, 2014 @11:14PM (#46147195) Journal

    The very existence of this document is evidence of a conspiracy to deny civil rights under color of law. This is both a civil and a criminal issue.

    IMHO it should be trivial to show that the authors of this document, along with all adminstrators and instructors who used it in training agents and all agents who, having attended such training, committed any of the described acts, have committed a felony.

    I wonder if civil RICO suits might be brought, as well. B-)

  • by Frobnicator (565869) on Monday February 03, 2014 @11:26PM (#46147257) Journal

    > All this evidence, collected this way, is admissable because it could have been discovered

    The ccops illegally tap your phone line and hear about a pot deal. What did not happen is that a a K9 officer COULD HAVE been taking the dog out for a walk when they just happened to walk by a car full of pot. That didn't happen, but it could have.

    If I'm understanding you correctly, you are claiming that the cops can search the vehicle and it's not fruit of a poisonous tree because they could have stumbled upon it. They didn't, but they could have. Do you have a citation for that? In all of American jurisprudence has any appeals court held that it's okay to violate the Constitution because they could have not violated it? I know a certain "law professor" (who never taught law) who might believe that, but has the court ever ruled such?

    And that is precisely the difficulty around parallel construction.

    The government cannot withhold potentially exculpatory evidence. In the late 1960s, right after the SCOTUS decided the Brady case, prosecutors gave quite a lot of information to defendants. Over the years prosecutors and judges have taken progressively stricter interpretations to the point where they routinely withhold everything again, only handing over the minimum that they think might fall under Brady and often only if the defense uses very specifically worded discovery demands. If the prosecutors can argue that they didn't think it was material evidence, or argue that the discovery demand wasn't quite specific enough, they can get away with it. And since the defense doesn't know about the evidence (as it was withheld from them) they almost always get away with it.

    In very recent time, perhaps the last 18 months or so, there has been a surge in claims of withheld exculpatory evidence, and judges are increasingly more sympathetic to defendants during discovery. There have been quite a few major cases where prosecutors realize that maybe some of the evidence might have been potentially exculpatory, but often their excuses are enough to keep judges from dismissing the case outright. Both behaviors are changing, and we have multiple cases going right now in my state that are currently on the fast track for the state supreme court where evidence was "accidentally" withheld (except some leaked information shows it was quite intentional as the defense 'would never know') but prosecutors and judges had a wink-and-a-nod when it was discovered to be "accidentally" withheld. (There is a very active public debate about this right now; since prosecutors are immune for these violations and they are kept employed based on their results rather than fairness, they have every incentive to break the law with impunity.)

    Parallel construction is nearly impossible to detect, and if discovered is subject to the exclusionary rules. Depending on the nature of the construction and the interpretation of the judge, it could exclude no evidence, some evidence, or be enough to cause the case to be dismissed entirely. The problem is that when it happens you don't have any evidence that it happened. Prosecutors and officers might not even know it happened, since groups like the DEA use anonymous tips to police for the construction. Even though the entire case might be tainted enough for dismissal, it is possible nobody directly involved (even the police and prosecutors) know about the unlawfulness because it was laundered through anonymous reporting systems.

  • by JonBoy47 (2813759) on Tuesday February 04, 2014 @03:23AM (#46147909)

    You people are all forgetting about inevitable discovery. If the prosecution can prove that a piece of evidence would have been "inevitably discovered" then the fact that it was actually obtained by illegal means becomes a moot point. This inevitability can be empirically proven if the illegally obtained evidence is later also obtained via legal means. See Segura vs. United States. Grand juries are allowed to question witnesses based on evidence that was allegedly collected illegally. See United States vs. Calandra. The Court has also ruled that the exclusionary rule goes out the window if the evidence was obtained, even illegally, by a private citizen. Purely coincidentally, law enforcement agencies have a penchant for using confidential informants.

  • by mosb1000 (710161) <mosb1000@mac.com> on Tuesday February 04, 2014 @05:34AM (#46148269)

    Discovery can involve any material which might be relevant to a particular case [wikipedia.org] with substantial restrictions to protect the identity of government informants and to prevent intimidation of witnesses [uscourts.gov]. The prosecution is not the authority in determining which information may or may not be relevant. They must comply with any request for information the defense makes which the court agrees may lead to information relevant to the case. Any lawyer worth anything will ask for, and be entitled to, all the information the police gathered during their investigation. Of course, this also goes the other way in that the defense is required to comply with any requests made by the prosecution.

    With regard to illegal wiretaps, if a defendant's civil rights were violated during the course of an investigation, that would certainly be relevant to the case. That is why they build a parallel case using legitimate means to present to the prosecutor.

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