Challenging the Ghost of “Parallel Construction”

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?


6 thoughts on “Challenging the Ghost of “Parallel Construction”

  1. Wheeze The People

    SHG, in your view, from a legal philosophy perspective, does a “just” ends ever justify unethical and/or unjust means?? Stated differently, in our system, should the proverbial bright-line rule of justice be that the ends never justify the means or, instead, that a balancing test of ends to means is sometimes more reasonable and/or warranted?? . . .

    And based on your experience, how, generally, do you think the following stakeholders in our justice system would answer such questions under oath versus over a few beers with friends?? Law Enforcement Officers, Prosecutors, Defense Attorneys, Trial Court Judges, Appellate Judges, Supreme Court Justices, Legislators, the Founding Fathers, Defendants, and Wheeze *cough* *cough*the People?? . . .

    1. SHG Post author

      A fabulous question, but one that our founding fathers were kind enough to answer for us. They made the executive and legislative branches swear fealty to the Constitution, and they made constitutionality contingent on due process. Problem solved.

  2. Brad

    Thanks for the insight.
    Here – somewhat belatedly — is what I’ve wondering about: I’ve heard a lot of criticism that the DEA’s program and the “parallel construction” techniques agents use to conceal it are a constitutional violation. But, assuming you could get around the standing issues, what, exactly, would the violation be under the law the way courts interpret it today?
    I’ll leave aside for the moment situations in which agents lie to judges (“We just got lucky, your honor.”); that’s an obvious problem, but not one that’s unique to the DEA’s Special Operations Division. It can – and, sadly, does – happen whether the information comes from the SOD, a regular informant, the suspect’s mom, etc. I don’t think there’s much anyone could or would say to defend that. But what about this: Police get a tip from SOD that somebody will be driving a truckload of drugs on a particular day. So they follow him around, wait for a traffic violation, and search the truck. Their affidavits start with the traffic stop, and don’t disclose why they first suspected the driver might have drugs.

    Is that a Fourth Amendment problem? After Whren, I’m not sure how that would work. The Reuters stories say that the information DEA is relying on is lawfully obtained, primarily from traditional law enforcement sources (Title III wiretaps, informants, toll records, etc.); some comes from the NSA’s foreign intelligence. But even if it wasn’t obtained illegally, does it get you to a Fourth Amendment violation? The Fourth Circuit had a case like that in June (United States v. Richard): Police (unlawfully, it turns out), used GPS to track a drug suspect. They used the tracker to figure out when he was picking up a new shipment, and to follow him home. Police stopped his car when he failed to signal, had a dog sniff it, and when the dog alerted, searched and found heroin inside. But the Fourth Circuit said there was no Fourth Amendment violation, because the police had adequate PC for the stop (the traffic violation), which led to adequate PC for the search (the dog’s alert), which led to adequate PC for the arrest (the heroin).

    Is it Brady? If the agent lies, that obviously goes to his credibility (but that’s not a unique feature of the SOD operations). Still, the SOD tip seems unlikely to be favorable to the defendant. I suppose there could be a Brady issue if you say that SOD is part of the prosecution team, and if SOD has information favorable to the defendant.

    Is it a Rule 16 problem? I could see the argument that the SOD information is material to whether or not the defendant possessed drugs, inasmuch as it’s additional inculpatory evidence that he did. But there are also plenty of cases holding that the government doesn’t have to disclose the source of the tip that first causes them to suspect somebody’s breaking the law.

    Or is it something else?

    (I also wonder whether a lot of the public outrage is based on an assumption that what the DEA is mining is the NSA’s database of telephone metadata. This article seems to think so: But Reuters’ reports don’t read that way to me.)

    1. SHG Post author

      About time you showed up. First, it’s impossible to answer your question without a set of facts to go with it, which is similarly the reason why the “policy” evades challenge. There is no mechanism to challenge it in a vacuum, unrelated to a particular prosecution.

      That said, every time the government presents a set of facts upon which the defendant is constrained to rely that are deliberately false, the defendant is denied substantive and procedural due process. Not every constitutional violation relates to the 4th Amendment or Brady, though those tend to be the big 2, and sometimes the government conduct would be completely lawful and proper, but for the fact that they have deliberately misled the defense and thus deprived the defense of knowledge of, and the ability to contest, the true set of facts that gave rise to the government’s actions and the defendant’s arrest.

      Due process is a fundamental constitutional notion, incorporating both fundamental fairness (substantive due process) and the right to be heard (procedural due process). If the defendant never knows the true impetus for his arrest and prosecution, he is by definition deprived of the ability to challenge it. Whether or not there are grounds to challenge it if he knew the truth isn’t the point, but he must still be given the opportunity to do so. In every instance that the defense is fed a lie, a due process violation inherently occurs.

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