FBI Allowed to Hide Potentially Exculpatory Information

By Joshua L. Solomon

While the Whitey Bulger trial was dominating local news, and reminds (or should remind) the country of a lengthy period of government corruption and direct participation in criminal conduct, the First Circuit issued an opinion that reflects ongoing willingness to place undue trust in federal law enforcement at the expense of criminal defendants and a striking lack of concern about claims of actual innocence.  The opinion, Moffat v. United States Department of Justice, also highlights the need for defense counsel to frame issues of government misconduct, law enforcement arrogance, and the accuracy of convictions as systemic issues of significant public importance, not limited to matters affecting an individual case or defendant.

According to the First Circuit’s description, Moffat was convicted of first degree murder in state court.  During his trial, local prosecutors provided him with a redacted FBI 302 report.  The FBI report recounted a witness’s repetition of a conversation in which another witness described the murder at issue, including that witness’s and Moffat’s presence at the murder.  This conflicted with the government’s theory, on which it obtained Moffat’s conviction, that Moffat was alone, and potentially implicated the witness who claimed to have been present for the murder.  In fact, Moffat’s contention was that the witness who apparently admitted to being at the scene, according to the story in the 302, was the actual killer.

While serving a life sentence for the murder conviction, Moffat made a Freedom of Information Act request for an unredacted copy of the report and other documents about Moffat and his involvement in the murder.  The FBI initially claimed that it had no documents and denied the request, including through administrative appeals of the denial.  Following those appeals, Moffat filed an action in the District of Massachusetts seeking to force the FBI to comply with his requests.  Once sued, the FBI “found” and produced additional documents (apparently, it justified its earlier failure to find the documents on its practice of conducting less thorough searches until it is actually sued!).

The versions of the 302 report that the FBI ultimately produced were more heavily redacted than the copy that Moffat already had.  After making its production, the FBI moved for and obtained summary judgment dismissing the action (the District Court Judge who dismissed the action is the same former prosecutor who is presiding over the Bulger trial).

Among the issues before the First Circuit was DOJ’s reliance on a FOIA exception under which release of information might “constitute an unwarranted invasion of personal privacy.”  The First Circuit found that privacy interests of third-party informants, FBI personnel, and people merely mentioned in the interview outweighed what it viewed as a non-existent public interest in the release of the information.  In a decision that is devoid of any appreciation of the fact that Moffat’s request went to claims of actual innocence, and thus to his life imprisonment and the possibility that another who was responsible was never held to account for the murder, the First Circuit quoted an earlier decision to hold that “the innocence or guilt of a particular defendant tells the Court nothing about matters of substantive law enforcement policy that are properly the subject of public concern.”

This statement, especially in a murder investigation, is highly dubious.  But even if true, the importance of whether a particular defendant is guilty or innocent as a general matter is not the same issue as the importance of whether the law-enforcement and judicial systems produced a conviction of an innocent person in a particular case.  Maybe it did or maybe it didn’t in Moffat’s case.  But exploring whether those systems failed, resulting in a life sentence, in the face of a redacted government report that on its face suggests an incorrect theory of prosecution, is undeniably of great public concern.  Focusing only on the question of Moffat’s guilt or innocence, as opposed to the societal issue of a system that produced a possible incorrect conviction leading to a life sentence, the court further wrote that “Moffat’s only discernible interest in the requested information is to challenge his murder conviction, and he has failed to connect his deeply personal stake in this information to a larger governmental function.”  Given all that goes into a murder investigation and prosecution, and the stakes of such proceedings, one would think that ascertaining and adjudicating guilt or innocence of a defendant involves more than something “deeply personal” to the defendant, and implicates broader societal interests.  In any event, where the government is choosing to keep hidden information in a document that, according to the First Circuit’s own opinion, it first tried to claim it did not have, and that casts doubt on the prosecution’s theory of conviction, there is an undeniable public interest in learning whether the system functioned properly or erred, and why.  When faced with the common question of the public’s interest in the government’s activities, defense counsel would do well to frame the interests at stake in such systemic terms, focused on the legitimacy and accuracy of the systems at play, no matter how strongly we may believe (correctly) that the interest in determining an individual defendant’s guilt or innocence should be a matter of sufficient public interest in its own right.

There is also another public interest at play – and timely in light of the Bulger trial – that defense counsel should not be shy about invoking.  The Bulger trial should serve as a cogent reminder to all involved in the criminal justice system of the danger of mindlessly deferring, simply by virtue of their positions as representatives of the federal government, to the presumed judgment, competency, and honesty of federal law enforcement and prosecutors.  While the former-prosecutor judge has curtailed the defense’s ability to rely on such information, the Bulger saga is marked by extraordinary government corruption and misconduct, including direct participation in murder.  One need only speak the names John Connolly, Paul Rico, and John Morris to emphasize the danger in blind reliance on the faithfulness of government agents (and that is without even getting into the government’s astonishing use of witnesses such as John Martorano, whose testimony the prosecutors paid for with a 12-year sentence for 20 confessed murders and $20,000 in cash).  In appropriate cases, and Moffat may well have been one, defense counsel should not hesitate to rely on the strong public interest in ensuring that prosecutors, FBI agents, and other government officials are not simply taken at their word when they say such things as “we don’t have documents,” “requested information is not exculpatory,” or “undeveloped privacy issues are at stake.”