> 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.

> can already wipe incriminating evidence, which is already illegal. That would imply that the powerful already have a “get out of jail” card

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.

> We’re referencing a case where a state senator was convicted despite a drive (of potentially exculpatory evidence) being wiped. So no.

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?

> powerful person was not powerful enough (or was actually honest enough) to not leverage the illegal “get out of jail” cards that already exist

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...

The appeal was denied. The evidence was available through other means and was ultimately ruled to be inconsequential.

https://law.justia.com/cases/federal/appellate-courts/ca8/18...

You handle it in appeals, and the appeals court looks at the balance of the evidence weighed against the alleged exculpatory evidence and makes a decision?

> the balance of the evidence weighed against the alleged exculpatory evidence

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.

The destroyed drive was discovered before the trial started and there was a motion for dismissal that was made, appealed, and ultimately denied because

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...

Glad to hear it was preserved. Absolutely mortified in other senses though. Thanks for the link to the case.

> you see the fundamental problem

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?

Yes. You are. Because ethics lapses by State actors who are empowered to such an asymmetric degree, demand it.

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.

Is the prevailing goal of our justice system to convict this one particular defendant, or to ensure that trials are as fair as possible for all defendants?

Unfortunately in most cases the defendant is far too poor to afford to hire an attorney for an appeal. Justice very often relies on the contents of your bank account

> in most cases

In this case they’re an elected official who siphoned six figures out of state funds.

I mean, they are an elected official convicted of doing so in the absence of exculpatory evidence that was deleted by an fbi agent.

Where did you learn that?

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.

> Not fruit of the poisoned tree, where evidence can’t be used. Automatic exoneration.

What fruit do you discard after somebody destroys the data that tells what tree was poisoned?

> LEO doesn’t get sent to standard prison, largely for safety reasons

In the US they do. Look at Derek Chauvin. He got assaulted on day one.

do you have a source? (not because I don't believe you, but rather I'm fascinated and want to learn more but not finding anything with google)

I couldn't find a news article stating this. I'm skeptical that a highly politicized and infamous former policeman would not be immediately shipped to PC at any prison he went to -- he or his lawyers would probably request it outright.

We don’t know what was on the drive, since it was wiped. We just know the agent says they had it wiped.

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.

True. Tho' I believe the arc of the point is...a system based on humans and human nature is subject to a wide range of questionable behaviours.

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.

> And that, pardon the cliche, is just the tip of the iceberg.

But is it just the tip of the iceberg? Or are these things highly publicized when they happen because they are rare?

Humans - you and me included - are far from perfect. A title or position does little to alter that. In fact, title and status breeds overconfidence and additional biases.

I'm not a cynical, simply realistic. We don't know about a fraction of the shit that goes down.

With the right amount of incentive, they could hire a lawyer to get them house arrest instead of prison time or a reduced prison time in a minimum security luxury prison.

Thanks for the level head and second-order thinking. Still outrageous - but beware the knee-jerk reaction as you said.

I think it's a great idea not to do the first thing you think of, and instead to think of alternatives before committing to a solution. But I'm scratching my head here trying to think, what are good alternatives? Are you suggesting we send their family to jail too? I mean honestly, what do we do here? Let them keep their job, pensions, and what ever hush money their received?

If this isn't a crime that sends you to jail, then I'm a little at a loss here.

> what are good alternatives

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.

No, the issue is with guaranteed exculpation.

I understand, but doesn't a wiped drive create reasonable doubt? Maybe there isn't even the need for a special law about this, just use reasonable doubt. I also have the feeling that there already are laws/case law about what to do in case of illegally destroyed (potential) evidence, we just don't know about it because we're not lawyers.

It does and it was. The defendant appealed, they figured out what was on the drive independently, and the evidence was weighed against him. This article is catnip for amplifying reasonable anti-authoritarianism into a general distrust of laws and justice.

Obviously there should be an exception to the exception that says that says the auto-exoneration doesn't happen if the accused conspired to destroy the evidence.

Better would be the inverse of the consequences when the defendant erases evidence - you just assume the destroyed evidence was whatever is worst for the prosecution and best for the defence.

If the defendant erases evidence, he gets prosecuted for that. I don't think "you just assume" is ever what happens in a criminal case. IANAL.

Some jurisdictions have an "adverse inference" instruction for exactly this situation. I'm partial to WV's (I may be biased).

https://pds.wv.gov/attorney-and-staff-resources/research-cen...

>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.

How do you feel about the NSA?

My knee-jerk reaction would include adding the sentence the accused was threatened with as a "bonus" to the standard sentence the rogue law enforcement officer would receive as punishment. That might add sufficient disincentive.

Good ole slippery slope. This is an insane take, tampering with evidence needs to have consequences, and unfortunately I'd rather let someone innocent go (even if that means sometimes guilty go free too). It's much worse to err on the side of let's kill / punish a few innocents.

They aren't saying tempering shouldn't have consequences. The person who did the tampering can still be punished. They are saying that, on top of that, having the other party have all charges removed in adding a bad incentive for certain people to want to tamper with evidence.

This has nothing to do with slippery slopes.

Yes it is, even if you can't see it. How is that person to defend themselves now? Talk about lack of empathy.

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.

That’s why the penalty should be death