February 13, 2015
Or, how the government conspires to deny justice to “we the people.”
In 1976, Cynthia Bailey reported to the police that a man confronted her in her home, and armed with a knife, sexually assaulted her. She described the assailant in terms of his approximate age, race, height, build, and facial hair. She provided the police with a detailed description of the assailant’s clothing. On the same day, police took into custody a man by the name of Franks, charged with assaulting a 15-year old girl six days earlier. After his formal arrest and a reading of the charges against him, the defendant told the court that he thought he was answering to charges of assault against the teenaged girl, who he knew—not the raped women, whom he did not know.
After his conviction, Franks asked for a judicial review of the decisions by the state court and Delaware Supreme Court. The state court denied his motion to suppress evidence used against him, and the Supreme Court affirmed the lower court’s denial. Convicted for rape, kidnapping, and burglary, the State Supreme Court (quite amazingly) held that a criminal defendant does not have the right to challenge the veracity of a sworn statement used by police to obtain a search warrant. The US Supreme Court reversed the State Supreme Court’s judgment. The inclusion of evidence under the warrant in the petitioner’s trial was not a harmless error because the fourth Amendment and the derivative exclusionary rule applicable to the states allowed the petitioner, under the circumstances, to attack the veracity of the warrant’s affidavit after the warrant had been issued and executed.
This is now a matter of United States Case Law: Franks v. Delaware 438 US 154 (1978).
In spite of the high court’s ruling, and in spite of our Fourth Amendment protections, federal investigative agencies are conspiring to teach their agents how to build a case using illegally obtained evidence, how to cloak this illegally obtained evidence, and how to lie in court —and get away with it. They call this procedure of lying and deceit, “Parallel Construction.”
Parallel construction is used when creating criminal cases against Americans that are actually based on warrantless NSA surveillance —the de facto use in court of illegally-obtained evidence, and then, while under oath, denying any knowledge of such illegal activity. Law enforcement officials realize that lying under oath is necessary because if a presiding judge believes that the government submitted illegally obtained evidence, he or she must suppress that evidence.
DEA officials explain it in a different way, however: they use parallel construction to protect sources (such as undercover agents or informants), or methods of investigation. They have argued, “Parallel construction is a law enforcement technique we use every day.” This is no doubt true, but does this process circumvent the law? Does it violate our Fourth Amendment rights?
Drug Enforcement (as well as other federal agencies) have devised training programs to teach agents how to construct two separate chains of evidence in order to hide surveillance programs from defense lawyers, prosecutors, judges, and from the public, which is already wary of domestic spying by the NSA.
According to MuckRock, a collaborative site that seeks to give people the tools they need to keep our government transparent and accountable, government training manuals encourages willful ignorance by field agents to minimize the risk of making intelligence practices public. The site continues with:
“The trainer’s notes continue, ‘In the old days, classified material was poison. In some ways, it still is … because if treated incorrectly, it can screw up your investigation.’
… parallel construction allows law enforcement to capitalize on intelligence information while obscuring sensitive sources and surveillance methods from prosecution, defense, and jury alike.”
I think every law-abiding citizen wants to see law-breakers caught and punished, but I also believe that most law-abiding citizens want to see this done fairly and in accordance with both the spirit and letter of the law. I believe Americans are a fair and judicious people; I believe we do not want to see anyone railroaded into prison. I believe that most Americans think that if the government can railroad one person, whether he is a drug pusher or not, they can railroad anyone —even, or especially those who stand falsely accused.
We are once more evaluating our government and coming away with a putrid taste in our mouths. Circumventing the Constitution is not what our founding fathers had in mind, so I wonder why “we the people” continue to put up with it. Is this actually a matter of frog boiling, or is it rather because the American people no longer deserve their constitutional protections?
Hat tip: Carol Martin, Defense Investigator
Permission given by A MONTPELIER VIEW: to Lorra B. to post articles in their entirety.