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What If the Informer Against You Lied in Other Federal Drug Cases?

The question arises whenever a criminal conviction is based on evidence from a confidential informant: what if that informant is lying? Typically, informants are people who have agreed to help the government because they themselves are accused of serious crimes, meaning there is an incentive for them to do whatever is necessary to get the evidence that will save them from prison -- even, in some cases, if that means engaging in entrapment or even framing others.

A Guatemalan man has reason to suspect the reliability of the confidential informant whose testimony led to his 2009 conviction on federal conspiracy to commit cocaine trafficking and money laundering charges. After being convicted and sentenced to 9-1/2 years in federal prison, he learned that informant had later been "deactivated" for lying to the Drug Enforcement Agency in other cases.

The reliability of that witness was central to his trial, and evidence that the informant was lying might entitle him to a retrial. So, he filed a Freedom of Information Act request seeking the DEA's records about the informant's criminal past and why he was deactivated for lying.

His request was based on an affidavit from the very DEA agent who had worked with the informant to convict him, and the agent admitted the DEA had caught the informant in serious lies. In fact, after the informant was given a polygraph test and "failed miserably," the DEA allegedly discovered he was still an active heroin supplier.

Rather than releasing the records and undertaking a good-faith review of the Guatemalan man's case, however, the prosecution tried to block the FOIA request. They argued that law enforcement records are exempt from FOIA if releasing them would reveal a confidential informant's identity.

There are several problems with that stance. First, the informant's identity was already public because he had testified in open court. Second, denying these records -- the primary evidence of his most legitimate defense -- would deny the defendant due process. Finally, prosecutors are supposed to promote justice -- not try to win at any cost.

A federal judge denied the government's attempt to shield the records from the FOIA request, and the Guatemalan man will now be given access to the records that will allow him to challenge his conspiracy, cocaine trafficking and money laundering convictions.

The concept of due process of law requires those accused of crimes to be given a full and fair opportunity to confront the witnesses and evidence against them, or no trial could be fair. To properly confront the government witnesses, it is necessary that the government disclose the kind of information that it sought to hide in this case. What interest does our government have in restricting such evidence?

Source: Courthouse News Service, "DEA May Have to Share Records on Ex-Informant," Ryan Abbott, June 11, 2013

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