These knee-jerk reactions sound good in passing, and sometimes pass into law. In reality, you created a get out of jail card for the powerful. Plenty of people in law enforcement would wipe a drive if their family and debts were taken care of, even in face of prison.
This is beyond ridiculous:
(1) Someone in law enforcement that is in a position to meddle with the chain of evidence can already wipe incriminating evidence, which is already illegal. That would imply that the powerful already have a “get out of jail” card.
(2) There are a myriad of other places where corruption and bias can produce a “get out of jail” card, starting with who law enforcement chooses to investigate in the first place, and ending with who prosecutors decline to prosecute.
(3) Anyone in law enforcement is well-aware of just how horrific a place prison actually is, especially for someone previously in law-enforcement. Nobody is scrambling to wipe their debts to “take care of their family” while going to prison themselves.
We’re referencing a case where a state senator was convicted despite a drive (of potentially exculpatory evidence) being wiped. Then the guy who wiped the drive was caught and charged. So no.
OP suggested the defendant be “automatically found not guilty.” Not fruit of the poisoned tree, where evidence can’t be used. Automatic exoneration.
> myriad of other places where corruption and bias can produce a “get out of jail” card, starting with who law enforcement chooses to investigate in the first place
Nothing automatic. Also, this is why we have overlapping jurisdiction.
> law enforcement is well-aware of just how horrific a place prison actually is
LEO doesn’t get sent to standard prison, largely for safety reasons.
This senator was not powerful enough (or was actually honest enough) to not leverage the illegal “get out of jail” cards that already exist.
> OP suggested automatic not guilty for the defendant. Not fruit of the poisoned tree, where evidence can’t be used. Automatic exoneration.
What else are you going to do when potentially exculpatory evidence has been summarily wiped by the people responsible for maintaining the chain of evidence?
Force the accused to prove the wiped evidence was exculpatory?
This can always be claimed about anything, both ways.
> What else are you going to do when potentially exculpatory evidence has been summarily wiped by the people
Look at the other evidence in appeal. (The defendant is appealing [1].)
[1] https://www.nwaonline.com/news/2018/sep/05/sentence-in-woods...
https://law.justia.com/cases/federal/appellate-courts/ca8/18...
Surely you see the fundamental problem, here. This shifts the burden of proof onto the defendant. Demonstrating the previous existence and, in particular, the exculpatory nature of destroyed evidence is practically impossible.
If the state directly conspires to an unfair trial, the state’s case must be forfeit.
A. The evidence was available through other means
B. It was not strong enough to exculpate the defendant
[1]
I agree that taking a strong inference against actions of prosecution when evidence is destroyed and unrecoverable. However, in this case, that's not what happened. Evidence was destroyed, but it was also preserved in other locations (it was uploaded on dropbox).
Our court system, while weak in many areas, isn't terrible in this sort of circumstance. It doesn't take hard lines because things are tricky.
This sort of problem with evidence is made to come out of the regular court proceedings. It's why discovery happens before we start a trial.
[1] https://law.justia.com/cases/federal/appellate-courts/ca8/18...
That we’re ignoring all of the evidence that contributed to the case (and conviction, which was made after the wiped drive was discovered) outside one laptop?
If exculpatory evidence is destroyed, adverse inference demands the court infer that that evidence be viewed in the worst light for the destroyer of the evidence, which in this case is the State. It really doesn't matter what was on that disk at this point. Now that the chain of evidence has been destroyed, we have to assume it truly was exculpatory.
Just as we'd assume a defendant destroying evidence would indicate it was so damning the jury should assume it was just the thing the State needed to prove their case.
Good of the goose, good of the gander. No self-referential inconsistency.
In this case they’re an elected official who siphoned six figures out of state funds.
My experience in USA with appeals is they only look at technical process, mis-application of case law, or "clear error". Constitutional issue can be raised, and will lose basically every time.
Any balance or weighing of evidence is in the lower court.
What fruit do you discard after somebody destroys the data that tells what tree was poisoned?
In the US they do. Look at Derek Chauvin. He got assaulted on day one.
Creating a situation where bribing a law enforcement officer to claim to have destroyed evidence gets you out of a criminal charge automatically seems like a pretty problematic idea.
Just recently there was a judge - was it judges? - found guilty of sending kids to prison based on kickbacks received from the prison. And that, pardon the cliche, is just the tip of the iceberg.
Human behavior is both predictable and yet often bizarre.
But is it just the tip of the iceberg? Or are these things highly publicized when they happen because they are rare?
I'm not a cynical, simply realistic. We don't know about a fraction of the shit that goes down.
If this isn't a crime that sends you to jail, then I'm a little at a loss here.
Allegedly corrupt state Senator claims exculpatory evidence on a wiped drive. Weigh what could have been there, benefit of doubt to the defendant, without doing anything automatically.
> this isn't a crime that sends you to jail
The FBI agent is going to jail. Per the article.
https://pds.wv.gov/attorney-and-staff-resources/research-cen...
How do you feel about the NSA?
This has nothing to do with slippery slopes.
I highly doubt folks will do this "incentive" if we were to throw out the charges given there is punishment for the tampering. And if so (slippery slope case happens!) we can reconsider. But otherwise it's all rampant slippery slope thinking and baseless paranoia. It's absolutely ridiculous.
https://www.nytimes.com/1973/10/16/archives/us-forgoes-trial...
I don't think this is even a hard case, legally. The government had relevant evidence & destroyed it deliberately. Not guilty.
If he actually has to serve that kind of sentence, that really doesn't sound too lenient.
Those are the exact same maximum penalties for a single count of wire fraud. It's more lenient than the penalty for growing 50-99 marijuana plants (same jail time, fines go up to $1M) or selling 50-99kg of marijuana (same penalty as the cultivation). On the high end of the scale, sale or cultivation of marijuana includes life in prison.
Relative to other less serious crimes (in my opinion), this does seem fairly lenient. There aren't even mandatory minimums on it, unlike drug charges.
I agree, and I hope the agent is sentenced harshly. However, given that this was a plea deal, I would expect him to get only a few years in jail. Although usually this is at the discretion of the judge.
But yes I think any LEOs should consider it not just a moral, ethical and legal violation of trust to do things like this, but to actively fear the consequences if they give in to the urge to cheat. In other words, a rational selfish person would NOT cheat because the EV is far too low.
Let's say someone kills a relative of mine, the FBI dorks something up ... they should go free by default even if otherwise can be proven guilty?
I don't think that makes sense / that's not justice.
So now you potentially go to trial with that evidence.
Had Jones's case been a criminal trial, the lawyer's screwup would have given Jones a powerful Fifth Amendment protection argument for excluding the relevant cell phone data from the trial. And anything that is found in that record is unlikely to be applicable to any criminal proceedings against Jones in the future (with the exception of perjury; I'm actually unclear on how a charge of perjury works in this circumstance when the Court is holding evidence provided by the defendant that the defendant perjured themselves).
"This isn't fair to me."
"I propose a solution that isn't fair to everyone else ..."
The punishment for tampering with evidence should be strict no matter what the case was about. Whether the crime they are framing somebody for is murder or petty shoplifting, the main problem is the abuse of the public trust.
You do not seem to grasp the implications of exculpatory evidence being destroyed. A retrial would be a vindication of the corrupt prosecution - er, I mean, the corrupt law enforcement who was totally not an agent of the prosecution.
This is exactly why adverse inference is a thing, and needs to be enforced to the hilt to exonerate, because otherwise, it doesn't disincent the State from doing the same thing in the future where they trade one of their own to really make a case stick.
The Court must symmetrically apply it's measures in disincenting pathologic behavior.
You're not getting it. We could discuss this in a nuanced manner if the evidence existed, and could be weighed by the Court.
We no longer can, because the State, the very entity we bequeathe with the sole authority to conditionally suspend civil liberties in the condition of a proven beyond a reasonable doubt case, and the abscense of exculpatory evidence, destroyed it.
The Court must assume that that information was so damaging to the State's case, that even with all of the disincentives the legal system has to offer, a State agent committed the heinous crime of denying to the defense evidence lawfully subpoena'd.
If the Court does not exonerate, it's recognizing, and cutting law enforcement a check to undermine the rights of a defendant, and more importantly, their counsel, to lawfully surface potentially material exculpatory evidence by whoopsy-ing the material in question, and trading one of their own to make it stick.
This undermines everything the legal system has been predicated upon. This attacks the very integrity and independence of the American judiciary. No one is above the law. Especially the Government.
You may not like the defendant; I don't, but I like a rigged system even less. These are the cases that really test the mettle and integrity of the legal system, and the claim we live in a society subject to the rule of law.
It could be you in the same position. Don't even try that "Pah, never happen", because you don't know. That's why due process matters. This person was entitled to the same procedure as everyone else, and the State has willfully deprived him of it.
Also, at that point I had not read the ruling you referred to, which oddly clearly states the erased data was just a copy loaded to Dropbox; meaning the data exist in at least three places, one one of which is the one in question, that is the disk on the laptop that was erased by the agent. No explanation is provided of what happened to the other copies.
See “parties learned that a paralegal in Mr. Wilkinson's office named Karri Layton had uploaded the Neal recordings to a Dropbox account” here:
I have long said that attempting to frame someone should bring the same punishment the person would have faced if convicted. However, it shouldn't be automatic exoneration for the person who would have benefited. In this case it seems the attempt to destroy the data failed, the data was obtained and deemed insufficient to exonerate him. Handle it as we do in civil trials--missing evidence is presumed favorable to the other side. Now, usually that would result in an exoneration but it shouldn't be automatic--especially in cases like this where the attempt failed.
https://definitions.uslegal.com/a/adverse-inference/
Given the evidence was exculpatory in nature, the court must assume the worst of it's impact on the State's case.
Another issue is that due process has been broken in a way that can never be restored. I'm a little leery of continuing prosecution under those conditions, given that due process is the underpinning of a just legal system.
You're treating the symptoms, the leaf nodes. The FBI is a criminal organization with a long history, that should be abolished outright.
/s
It would be logistically and all around easier to replace the corrupt FBI and it's culture than these two attempts by entire nations at replacing their corrupt police forces.
It is needed. Not because of anything that's happened the last couple years, but because the FBI has been run and staffed by criminals for decades.
This was true from it's earliest days when it was pulling dirty tricks on civil rights and anti war protestors.
Thinking this kind of things is cool when it's used against your political opponents is incredibly short sighted.
That's literally it. As long as the Feds were just cracking the heads of black protestors and snatching brown people up out of their beds, Trumpists were hard-core thin blue line. But the Feds dared disturb their oshi and now the same Trumpists have gone full #ACAB
It's basic fascist ideology - loyalty to the leader above all, and belief that the leader is above the system.
The FBI are investigators, not traditional police; they aren't generally the ones people are talking about when they say "thin blue line". It wasn't the FBI cracking heads and "snatching brown people out of their beds." The phrase is a reaction to perceptions of widespread civic disorder and violent crime; it really has nothing to do with the FBI at all.
Of course you do. Let's be outraged over them serving zero time before they are even sentenced.
All the "states misbehaving" issues that some people think they need the FBI for are traditionally handled by the US Marshall service.
* It’s not the 1920s, there aren’t large criminal organizations anymore
* The FBI in 2022 is a large criminal organization
"The enemy is both strong and weak. “By a continuous shifting of rhetorical focus, the enemies are at the same time too strong and too weak.”"
https://www.openculture.com/2016/11/umberto-eco-makes-a-list...
Happy now?
What smaller agency would take on a corrupt state Senator in Missouri?
In a solidly one-party state only the minority party gets prosecuted because the majority party will still win even if they look like corrupt buffoons. <insert Chicago joke here>
If the specific crimes are Federal as it was in this case, then the Federal law enforcement agency must get involved.
Otherwise your argument reduces to "there should be no Federal laws against wire fraud, honest services fraud, and money laundering"
Only when the state statute coincidentally matches the federal statute, for crimes like bank robbery that are defined at the state and federal level.
If the state doesn't have a law against the crime (i.e. South Carolina has no laws regarding hate crimes [1], but the federal government does [2]), then federal prosecutors are responsible for prosecuting those. One can't escape prosecution for a federal crime because there is no state law against it. Prosecuting federal crimes at a local level is exactly why the regional US attorneys offices exist.
In the case in from the article, the crimes committed by the state Senator (wire fraud, money laundering, etc) are federal by definition, so a local DA isn't going to prosecute them anyways.
1. https://apnews.com/article/ahmaud-arbery-columbia-south-caro...
The right solution is transparency and accountability. Make sure power abuse gets punished, no matter how powerful the abuser.
Strong public accountability and transparency. Actual "rule of law" without social or political bias as the first tenant.
The FBI really does have a very sordid history. Perhaps they can be reformed though, not sure.
Check the facts: there has never once been a Democrat in charge of the FBI. Not once. Not even the ones appointed by Democratic presidents; they have also all been Republicans.
Almost a century, and zero Democrats have ever run the FBI.
Yet if you look at the popular vote, the public has voted for Democrats to run the federal government continuously since the 1980s with only one exception (2004).
I believe this has some relevance to our situation.
We must assume that people are fallible, corruption is possible, and that we therefore need a means of redress when such corruption occurs.
I see.
"Due process is a requirement that legal matters be resolved according to established rules and principles, and that individuals be treated fairly."
The "established rules and principles" clearly and obviously were not followed, here. Therefore, by definition, and there can be no debate on this, there was no "due process", here.
It's really quite clear here whether there was due process. Which is why a judge already ruled. Probably took about five seconds to figure this case out.