Government incompetence. Did I just repeat myself?
“Trust me – I’m from the government.” The entire country utters that statement with cynicism. There are lots of groups vying for “Most Cynical About the U.S. Government” and private computer firms who do criminal defense work are certainly among them.
Case in point: We are assisting the defense in a solicitation of a minor case. We always seem to have to remind everyone that: 1) you are innocent until proven guilty; and 2) defendants are Constitutionally entitled to a defense. We are not the bad guys just because we work for a criminal defense attorney. Are most of the defendants we deal with guilty? Yes. Is that what we discover? Yes. What is the outcome in most cases? Our investigations result in the defendant accepting a plea bargain, thereby saving the prosecution and the courts a great deal of time and money. Have any of the defendants ever been innocent? Yes – and that’s another reason why we have a Constitution.
Consistently, the government makes it hard – sometimes impossible – to do our job. In the current case, the cell phones which constitute the electronic evidence were located in Reno, NV. There is some thought that there might be contraband (child pornography) on the phones, though no proof. On this basis, the U.S. Attorney in Nevada insists that the phone must be analyzed in Reno and cannot be sent to us to “…avoid any possibility of the evidence being lost in transit” and because “…there is no policy or procedures in place that would accommodate your request.” So our attorney has to get a federal judge to order that the phones be shipped here for analysis. When the phones arrive, our FBI contact (who, by the way, is very nice and seems as frustrated as we are) tells us that the phones have arrived but they cannot be released to her because the technician who shipped them from Reno has not updated their evidence control system. She later advises the phones are available so we go to do the onsite analysis. Upon arrival, we are denied entry because “recording devices” are not allowed into the facility; our equipment consists of a computer, storage drives, software/hardware for extracting electronic information, digital camera, and setup for taking digital photos of the phone display in the event electronic information cannot be extracted.
Stymied again. And just imagine the costs that are racking up for the defendant through all this. The most recent communication was from another FBI representative who has arranged for us to analyze the phones at another local field office of the FBI. Now we are told that we will need to sign a document stating we are not knowingly removing any contraband offsite, which is fine and not unreasonable. But we must also complete paperwork documenting our equipment and fingerprints of our examiner will be taken – both of these are firsts for us. Needless to say, we roll our eyes. We have to get fingerprinted to do our job?
The barriers to giving criminal defendants their Constitutional right of due process continue to grow, along with the massive expenses required by onsite inspections. These onsite examinations result in the inevitable choice of counsel and the expert to cut corners and not perform the recommended comprehensive review because of the time and money it would involve.
And now fingerprinting our examiners. Surely strip searches must not be far behind.
C’mon guys. We’re all professionals. Play nicely and don’t begrudge us doing our jobs, ok?
E-mail: snelson@senseient.com Phone: 703-359-0700
