High profile trials tend to offer insights that more run-of-the-mill trials don’t.  Judges who would ignore defense efforts to get under and behind what law enforcement does in the process of making the case as being irrelevant feel differently when there are journalists watching and listening.  Sunlight really is the best disinfectant.

So a particular exchange between the case agent in the Fieger trial and Gerry Spence offers a glimpse into the manipulations and machinations of the FBI.  Only a glimpse, since Judge Paul Borman wouldn’t let Spence have his way either (just like you and me).  From the Detroit Free Press :

When Fieger lawyer Gerry Spence demanded to know why Rees hadn’t recorded his call with Fieger as Bird had done with Johnson at the FBI’s request, Rees cited an FBI policy which prevents agents from taping conversations.

FBI critics have complained that failing to record interviews enables them to selectively record details of interviews in written reports and prevents the public from seeing the tactics agents use to obtain information.

But U.S. District Judge Paul Borman wouldn’t let Spence explore the issue.

This has long been a problem for me.  It’s remarkable how law enforcement can manage to record what is good for them, but never seems to have a recording of anything else.  Of course, then they are constrained to recount conversations from the witnesses memory, and everything they remember is terribly inculpatory.  Amazing how that happens.

It’s one thing that this crap happens.  It’s another that the defense is denied the ability to show that these purported “policies” are lies.  And they are indeed lies.  They are a deliberate deception.  They know it.  We know it.  The judge knows it.  And still the defense is prevented from proving it.  So much for all that nice talk about prosecutors doing justice and courts being impartial.

What jurors are never told is that there is a handbook for cops and prosecutors that provides them with stock testimony and arguments to weasel their way out of situations where they might get nailed for doing things like this.  The jurors hear the testimony, and it sounds fairly reasonable.  But it’s the same testimony we hear every time, over and over.  The only people in the room who don’t know it’s a scam are the jurors.

Watching police and federal agents try to weasel their way out of corners is one of the most enjoyable things about trying a case.  When you can box them into a lie, it’s a thing of beauty.  Whether the jury gets it is another matter, but we can only hope. 

Once, and only once, was I able to make an FBI agent break into tears, as I was able to use physical evidence to prove he had lied to the jury.  Just as I was about to perform the coup de grace, the judge figured out what was about to happen and stopped me.  It would have broken my heart had the agent not figured it out at the same moment, and begun to tear up.  I’ve had a couple of agents threaten to kill me, but that doesn’t bring anywhere near as much joy as watching one cry.

Even here, a United States District Court judge stopped me from making a monkey out of a government agent.  Why?  Why can’t the defense show the existence of systemic deception and manipulation in order to obtain convictions based upon intentionally produced false appearances and claims? 

Technically, it’s the rules of evidence.  Only evidence relevant to the specific case before the court is admissible.  Testimony about general practices is not.  Testimony in the negative is not.  And since we can’t produce a witness to testify that the particular agent in this particular case made the specific decision not to record a conversation a particular conversation for a specific reason, we have nothing admissible to offer.

But it’s a scam.  And we all know it.  And if you happen to ever sit on a jury, now you know it too.