Court Sidesteps Defendant’s Rights

… will fully protect and conceal identify of FBI undercover employee

Chief Judge Gloria Navarro ruled in favor of the Government in their motion to place a protective order on the identity of an FBI undercover employee (UCE). Defendants argued that this constitutes a violation of Brady / Giglio¬†material rights (see explanation here). Navarro found that the identity protection for the UCE outweighs the rights of defendants. Effectively, the court sidesteps defendant’s rights.

Extraordinary measure?

Not only is the identity of the UCE under general protective order, it is also not available to defendants or their counsel. The UCE will testify under the pseudonym “Chris Johnson”. Defendants will not be able to ask any questions that might personally identify the UCE. Because of this, defense counsel cannot investigate the UCE to determine if he has:

  • prior criminal history
  • history of substance abuse
  • workplace ethics violations
  • social media or other communications that might reveal prejudice

OK for the Government… not any one else.

The Government relied heavily on social media and other means of communication. Memorandums in support of pretrial detention were rife with quotations and screenshots from FaceBook, YouTube, and Email accounts. The Government’s exhibit list shows over 1/3 of the evidence to have come from social media and e-mail. Consequently, a large portion of the case against the defendants will come from things said both publicly and privately.

The Government can pursue an effective life sentence and have a substantial amount of evidence come from the medium of the internet, but a key witness is apparently not subject to the same scrutiny. Defendants have a well-established right to look for impeachable evidence (evidence that might harm credibility) against Government witnesses. Had it not been for a leak by the Salt Lake Tribune, the misdeeds of the Bundy Ranch Tyrant would probably remain unknown. It is therefore imperative for the Government to supply defendants with the information they need to investigate witnesses.

Court Sidesteps Defendant’s Rights

When the Court moves to allow such a broad restriction on the identity of a witness, a scenario where the court sidesteps defendant’s rights plays out in full. Consequently, judiciary rulings that strip the rights of defendants to look for impeachable evidence on a Government witness injures, if not cripples, due process.

The reasons for order aren’t congruent with reality. First, online threats occurred in the immediate wake of the Bundy Ranch incident; the argument that the UCE is in danger is stale at best. Second, while the UCE’s other unrelated investigations are materially irrelevant, prior conduct during past investigations could yield impeachable evidence. Finally, the UCE’s date of birth is materially irrelevant to the case, but very much necessary to conduct an investigation.

One has to wonder: since it is OK for the Government to leave no stone unturned, why is the same privilege not extended to defendants. Has tyranny become law?

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