FBI, Prosecutors Given Copies Of Defense Documents By Duplication Service Defense Was Instructed To Use
from the pixels-are-cheap dept
So much for attorney-client privilege. According to a report by Dan Christensen of Florida Bulldog, the feds' insistence that defendants utilize its contracted document duplication system has led to FBI access of privileged work product.
Court papers filed last week by attorneys for Dr. Salo Schapiro contend the secret practice was not the action of “just one rogue agent or prosecutor.” Rather, it was apparently an “office-wide policy” of both the U.S. Attorney’s Office and the FBI that’s gone on for “at least 10 years.”
The unwritten policy involves “surreptitiously copying defense counsel’s work product through the government-contracted copy service that the government requires defense counsel to use to obtain the discovery documents’’ needed to properly prepare for trial, according to court papers that seek either the dismissal of Schapiro’s indictment or the disqualification of the entire prosecution team.
[...]
Specifically, the court papers allege that Fort Lauderdale-based copying service Imaging Universe and president Ignacio E. Montero provided the government with CDs containing duplicates of documents Schapiro’s defense team culled from 220 boxes of evidentiary records in preparation for trial.
The government has responded with a filing [PDF] claiming it has done nothing wrong. It acknowledges the FBI and the US Attorney's office received copies of the files from the duplication service, but claims it never asked the company to perform this "service." That's at odds with other information gleaned by the defense, as well as an admission by a federal prosecutor.
The motion contends that company president Montero “lied” to Arteaga-Gomez about the copying process, and instead of making sure the government did not see the defense’s hand-selected files, provided FBI case agent Deanne Lindsey with duplicate copies.
[...]
Hayes, the federal prosecutor on Schapiro’s case, first informed Srebnick and his associate that agent Lindsey “had been surreptitiously receiving the CDs” on April 22, according to the defense motion.
“Hayes proposed to immediately destroy the CDs,” but the lawyers asked instead that he give them to the defense, “which he did,” the motion says.
The defense also claims to have a document in hand written by the owner of the duplication company stating that he has turned over duplicates of defense documents to the government multiple times over the past decade.
The government's response to the defense's motion makes a couple of points -- one more credible than the other.
The first is the government's assertion that all work product is not created equal, in terms of privilege.
The sole issue before the Court is whether the file name titles created by the defense late in the discovery process, or the patient files that SA Lindsey viewed, can be considered protected opinion work product, and if so, whether there is any legal basis to sanction the United States based upon her exposure to them.
Simply, there has been no showing that the documents at issue were protected work product, and there is no basis for the sweeping remedies Defendant seeks. Work product protection does not apply to every selection, opinion or mental process of an attorney. While Defendant’s argument conflates fact work product, which enjoys no protection or privilege, and opinion work product, which may be protected, he bears the burden of showing that work product protection covers each document at issue—and he has failed to do so.
This is an interesting assertion considering the government -- in response to FOIA requests -- tends to treat all work product as privileged and thus out of the reach of requesters. Here, it claims there are varying levels of privilege and tosses the burden of proof over to the defense to show why these documents should not have been seen by prosecutors.
The second assertion the government makes, however, undercuts the severity of the defense's claims -- if only in this particular case. All documents duplicated by the third-party service for the defense (and shared with the government) were already in the FBI's possession. They were taken from 220 boxes of medical/patient files seized by the FBI during its investigation. While viewing the illicit duplicates may have given the government some insight into the defense's preparations, it did not give prosecutors access to documents they otherwise wouldn't have had access to.
The government has also instructed the duplication service to stop providing "courtesy copies" (as the owner of the service refers to them) of defense documents to prosecutors.
Whether or not there was any impropriety, there's certainly the appearance of impropriety. The prosecutor's office, along with the FBI, apparently accepted the unauthorized duplicates without complaint, only seeing fit to provide clear instructions to the duplication service after its improper access was exposed.
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Filed Under: attorney client privilege, fbi, florida, photocopies
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Would Ethics classes fix this?
Maybe the FBI needs to attend the same classes? After all, they received copies, without raising any protest.
I wonder if they realize that they are supposed to prosecute actual crimes, and not go looking for people to 'slot' or pigenhole into manufactured cases or crimes?
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Re: Would Ethics classes fix this?
You can fit a square peg into a round hole... you just have to beat around the edges a little.
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Re: Would Ethics classes fix this?
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Re: Would Ethics classes fix this?
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You have fallen for the governments line of defence. It does not matter what the documents where, or whether the government already had copies, the the FBI and prosecution should not be looking over the defences shoulders in secret. This was an improper practice, full stop.
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it is not rape if the victim did not become pregnant.
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i know the answer, so don't explain it. we have to maintain the image in order to claim the high road. i bet the entire rest of the world laughs at that, but there's no laughter here. people here still joyfully celebrate our good, kind-hearted government and still hope to infect the rest of the world with it.
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And yes, because some people love it, some people will condemn it on one side and defend it on the other, and others won't care until it personally affects them.
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It will only be prevented by a population that understands what liberty means. The average American does not know shit about liberty and are living on borrowed time.
There is a constant cry by the people to be saved by the government when the cry should be for the people to gather and go save the Nation from the government instead. Instead there is a pseudo war of ideologies going on right know where both sides are completely dishonest or hypocritical.
We are in shaky territory. There really could be something stupid that launches a civil war, and the Government sees it, and does nothing but foment trouble while they claim to be trying to stop it.
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No impropriety since the FBI already had the documents
The occasional diacritic certainly cannot be considered enough to warrant tossing the case. Either upper or lower.
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Re: No impropriety since the FBI already had the documents
Whether or not the documents revealed anything new has absolutely nothing to do with whether or not the means to obtain them was corrupt.
See this case as an example.
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Honeypot to prevent future copying
(This is a bit like how map makers add fake info to maps to foil copiers).
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Re: Honeypot to prevent future copying
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Re: Re: Honeypot to prevent future copying
- FBI gives copying service access to everything.
- Copying service duplicates records according to instructions from defense.
- Copying service returns everything to FBI (or, if the items at the copying service were themselves copies, destroys them)
This flow would also provide a plausible reason for the FBI to insist on a particular copying service. They could argue that they have vetted the service and its employees enough to entrust it with the non-public evidence, so defense must use this service because no other copying services are certified to handle the evidence to the FBI's standards. This flow allows the defense to get duplicates of whatever documents it requested. The originals remain reasonably safe from tampering (including tampering by unscrupulous defense lawyers). In such a flow, it would be trivial for the copying service to either make an extra copy in step #2 and send those extras to the FBI or to furnish to the FBI sufficient details of what the copying service was asked to do that the FBI can identify which documents were copied.
As regards the impropriety, I would contend that the defense's choice of which documents it would need reflects the defense lawyer's opinion, likely colored by conversations with the defendant, about which documents would be most useful in exonerating the defendant. Thus, while it may be a fact that the defense wanted the document, it is the defense's opinion that the document is worth having. This would shift the argument back to whether that opinion is a protected work opinion. It seems to me like it ought to be.
If the prosecution knows which documents are most useful for exoneration, it can spend extra effort trying to understand why the defense believes them to be exculpatory and trying to identify ways in which to prevent the defense from using them to win, perhaps by discrediting the document (or its authors) or by identifying a legal interpretation under which the information in the document is inadmissable or is not exculpatory.
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Some Lawyers Agreed?
Won't be hiring these guys.
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That the DoJ is systematically cheating the legal system
Once again, all our convicts are shown to be political prisoners, not criminals.
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Re: That the DoJ is systematically cheating the legal system
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Re: Re: That the DoJ is systematically cheating the legal system
So is it better that we let an unknown number of innocent lives, possibly more than half of our inmates, languish in prison? Or is it better to let them all free, knowing that some of them are guilty, and will get to escape justice in these circumstances?
We're not even counting those in on victimless charges getting longer time than murderers and rapists due to mandatory minimums. We're talking the uncountable numbers that have been convicted by lies and deception and rights bypasses, some of them to death. We know the courts are gamed.
Blackstone's ratio suggests that 10% is unbearable (or rather that it's better that ten guilty people to go free than one innocent to be convicted). It's very likely we have at least twice that in falsely imprisioned, considering how eager the US is lock people up.
And then there's the matter that our prisons are horrid, teeming with corruption and abuse, and the people of the US don't give a fuck. And we sometimes kill people for their crimes, or for the crime of not fitting in to prison.
It doesn't really matter whether a convict was actually guilty. We have no way to determine that without a system that actually tries to determine guilt or innocence. What matters is that our suspects were denied actual due process, and rather got a show trial. That makes their imprisonment extrajudicial.
Ergo political prisoners. Not criminals.
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Re: Re: That the DoJ is systematically cheating the legal system
"Innocent until PROVEN guilty" is said to be a pretty sacred part of US law. The DoJ and state's Attorney Generals are supposed to PROVE stuff, not be lazy and gaff it all off. When the percent conviction is more important than actually figuring out if some random schmo did it, then that particular conviction is political. When all law enforcement appears to get that lazy, then every conviction looks political.
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Re: Re: That the DoJ is systematically cheating the legal system
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What they ended up with was a half-assed partial digitization of the evidence boxes, poorly indexed. They even said that they had to rummage about those disks when they wanted to provide copies of some stuff to their expert.
And, of course, "we didn't ask for these copies" doesn't shed light on why they were still accepting them, or how the arrangement was first set up.
I can only guess that they didn't want to pay for the labor of digitizing the documents in some coherent and comprehensive fashion. ... for instance, to make the job for the Defense harder (sorting through paper files vs doing searches on electronic ones). Or to avoid paying for digitization of stuff they'd be tossing in 2 or 5 or 10 years.
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Footnote 7, Page 13
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Even if this wasn't done deliberately, there is impropriety because of the fact that the documents and files were delivered and received by the government. It would be akin to a police officer bringing a witness to the courthouse when they were supposed to be brought to the police station for identification through a line-up process.
Even if it was accidental, that evidence can't be admitted because the witness identification was tainted.
In this case, since the prosecutor/government received files improperly from the defense via the duplicating company, it's the prosecution who will end up paying the price over this screw-up.
I don't recall the court ruling, but there was a case where a police officer brought a witness to the courthouse in error when the witness was supposed to be brought to the police department for a line-up regarding suspects in a criminal case.
This case is no different. The government screwed up.
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As of late it has been the government says they were justified in breaking basic laws and rights because they were after someone they knew was guilty. The court says we trust in your judgement and will overlook you knowingly breaking the law because your word means more for some reason. Even though you keep getting caught lying to the courts.
That is the reality from what I have seen
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If the thing they "screwed up" was that they got caught engaging in obviously nefarious behavior, then you're correct.
However, the actual nefarious behavior itself was not a screwup. It was a deliberate, systemic policy that predates this particular case. That's not a mistake. That's systemic corruption.
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Corrupt
Our "Justice" system is a joke. In a country where you can buy witnesses with plea bargains, make innocent look guilty, and counter a defense with lies and deceit, this country is fucked.
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Re: Corrupt
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Re: Corrupt
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"We are above the law" is what they are being trained to do, not the actions of a few bad apples.
To harass, to intimidate, to coerce, to brutalize and murder anyone that stands up to us.
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Get out if you can
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Very simple test to check for validity of argument
Yeah, didn't think so.
If it wouldn't be acceptable for the defense to do it, it shouldn't be acceptable for the prosecution to do it either, and if the defense would be punished for it then so should the prosecution.
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The inability for people to hypothetically reverse roles to test the merits of arguments is distubingly common.
Similarly law enforcement agencies that argue that crypto should be backdoored can't fathom using such a hobbled encryption scheme for police files, or their own personal files.
It seems to be this weird blind spot.
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Walking a mile in someone's shoes requires you be willing to take yours off first
If you start from the position that your stance, your argument is absolutely right then even 'switching sides' you're still going to come to the same conclusion, that you're right, because clearly the other side is wrong from the get-go.
"I know that being able to wiretap any phone without a warrant is a great way to stop and prevent crime, but for the sake of argument lets say I was one of those people who might have their phones tapped at any time.
...
Nope, so long as I'm not doing anything wrong I've got nothing to worry about, so all those 'privacy' concerns aren't valid as the only people that will be affected by this are criminals, and they don't have rights."
Or...
"My holy book of choice says that it's perfectly acceptable to treat this other group badly, but for the sake of argument what would it feel like to be in their shoes...
...
Nope, they're the ones choosing to be that way so it's still their fault, in their shoes I could and would change, and my book says treating them bad is acceptable, and since my book can't possibly be wrong then clearly it is in fact acceptable to do so."
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It is the same with the rights an accused has when they have been charged with a criminal offense. It is no longer you are innocent until proven guilty, now it is more you are guilty unless you can prove your innocence, and these days that is starting to be a very uphill battle.
There is way to much collusion between prosecutors, law enforcement and judges and when it comes to following the letter of the law most judges seem to give the government , prosecutes and law enforcement a wide birth in which to operate.
An accused nowadays faces an uphill battle with forces that conceal, lie, mislead and fail to be forth right in disclosure to the defense counsel and the accused in way of due process.
I believe if the forefathers could see how the constitution and the rights enshrined in it are being trampled over and discard like gum on a shoe, they'd be pissed and would be of mind at a travesty that is taking place.
The Goverment now seeks to win at all costs, whether the playing field is fair matters not, as long as they get the win that is all the care about.
What a mess they have made of the one thing Americans have always had pride in.
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There really is little different between established government and organized crime.
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The Last Word
“There really is little different between established government and organized crime.
It's more unnerving when establishment goes criminal then when criminal organizations go legit.