When Reuters “broke” the news that the Drug Enforcement Administration’s Special Operations Division engaged in what was euphemistically called “parallel construction,” experienced criminal defense lawyers lifted an eyebrow and stifled a yawn. How do you break something that we’ve all known about for 20 years? If there was anything shocking about the story, it was former Judge Nancy Gertner’s reaction to the story.
“I have never heard of anything like this at all,” said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records.
“It is one thing to create special rules for national security,” Gertner said. “Ordinary crime is entirely different. It sounds like they are phonying up investigations.”
Well, yeah. Sure. That’s pretty much the deal, and the only thing surprising is that Nancy Gertner says she’s never heard of it. Now that’s shocking. Maybe not under the name “parallel investigations,” a cool government-created phrase to conceal what was really going on, manufacturing a story to explain arrests and seizures so the real source could be concealed from the defense. Gideon, at A Public Defender, being less inclined to fancy rhetoric, explains it as “government lies.”
The point was pretty obvious: the government didn’t want to burn its rats or methods, because once the defense learned how an investigation was initiated (or what gave the defendant’s away), others still out there would adjust their actions, maybe make a snitch disappear, and that would be the end of things. So instead, they would create a set up, “phonying up investigations,” as Judge Gertner called it, to explain the bust, provide a lawful basis for subsequent actions, that was total baloney but looked sufficiently legitimate so that it would pass muster with a federal judge and keep the defendant from knowing the truth.
It’s a great investigative method, as long as one doesn’t mind a laundry list of issues ranging from perjury, obstruction of justice, due process violations, Brady violations and a slew of ethical breaches. But since it was all done in the name of well-intended law enforcement, and the defendant was a bad dude anyway, the government justified it as “no harm, no foul” and the end justifies the means.
A twitter discussion (a new oxymoron) broke out yesterday with USA Today crime reporter Brad Heath and @bmaz about why the criminal defense bar, if we knew all about this, never challenged the government’s violation of everything Americans hold dear about the law.
First of all, we did. We challenged it to the extent it was amenable to challenge in every case that was brought based on a phony investigative claim. I mean, how many times can the DEA, usually via local cops, fortuitously stop a mule who just happened to have ten kilos of cocaine in a “clavo” (secret compartment) in his car? Of course, there would always be a story about the how and why it happened, juxtaposing our claim that the government’s story was total nonsense. And this was before Whren, when the Supreme Court officially blessed law enforcement engaging in flagrant lies to catch people they thought were drug dealers but had no proof.
And judges laughed at us. We couldn’t prove that it was a lie in any individual case. Even when it smelled fishy, and it often emitted a very unpleasant odor, judges embraced the government’s story because we lacked hard proof to the contrary. It might seem unfathomable in retrospect that so many ridiculously lucky stops were made the resulted in massive drug seizures, but judges shrugged and cases proceeded to resolution.
Nobody knew in any individual case whether it was a manufactured lie or, well, kismet. After all, stercus accidit, and it wasn’t completely outside the realm of possibility that the government just got lucky. Again. And again.
But why, one might wonder, didn’t the criminal defense bar challenge the institutionalized scheme of subverting our criminal justice system by the government lying to everyone, from defendant to federal judge? Because there is no method to challenge government conduct in court without a “case or controversy,” as required by Article III, Section 2, Clause 1 of the Constitution. Government policies can’t be challenged in a vacuum, and required an actual prosecution to raise the issue. And when there was a prosecution, relevance precluded challenges to general policies absent proof that they applied in that specific case.
To provide a more concrete example, we know with absolute certainty, based on long-standing and well-documented scientific study, that eyewitness identification is unreliable. Yet, judges refuse to allow the defense to offer general evidence of this at trial because the general issue isn’t relevant to the specifics of an eyewitness identification in any particular case. We can challenge what happened in that case, but not the general concept of the unreliability eyewitness identification. And so the problem becomes intractable, evading a frontal challenge because the system limits us to only those provable claims that are directly relevant to the case on trial.
And while we may well know that the government was concealing the source of its information that initiated its investigation, gave rise to a particular stop or bust, creating a phony side story that explained what happened in such a way as to provide a judge with enough of a story to rubber stamp the arrest and seizure, we had no way to gain access to the evidence that it was all a lie. We couldn’t prove it. The agents would stick to their story, lying to the face of federal judges, and judges never raised an eyebrow. After all, agents are on the side of truth and justice, and defendants are criminals who would say anything to escape justice.
After enough time, it’s like so many other aspects of the system that are fundamentally wrong and dishonest, but grow into the normalcy of ordinary injustice. Trying to fight the lies put defendants at risk, as the government would argue (usually with great success) that when a defendant told a different story than the agents, that was per se proof that the defendant was obstructing justice, committing perjury, lying to the court. It eventually becomes problematic to expose a defendant to an enhanced guidelines sentence by fighting the lies when you know that in a pissing match, the judge will invariably side with the agents.
And the agents and prosecutors know this as well, exacting a steep price from any defendant with audacity of contending that the government was lying through its teeth. Except for the fact that the government was lying through its teeth, and the person telling the truth in the courtroom was the defendant. But hey, judges don’t risk their reputations, their future careers, their popularity, by finding agents incredible unless the evidence of prevarication is overwhelming. Even a half-competent agent was able to come up with enough of a lie to cover his butt, conceal the truth and persuade the court to go with the flow.
Twenty years later, “shockwaves” ripple across the media as government lies are given an official name, parallel construction, as if that changes what’s been going on for a generation. Perhaps a skeptical public will demand of its politicians that a system build on a foundation of lies be stopped. Perhaps judges will suddenly feel badly for denying suppression, sending truthful defendants to prison for longer than they should have, because they believed a lying agent instead of a truthful defendant.
Or perhaps the justification for manufacturing lies and subverting the system will make sufficient sense that nobody will think twice about it. After all, most people adhere to the belief that the end justifies the means, and the defendants are bad dudes anyway so who cares if they’re convicted on lies?