Today we have a special treat. William Leonard Pickard, the plaintiff in Pickard v. Department of Justice, the Ninth Circuit case allowing criminal defendants to sue the Department of Justice to get documentation about informants after the government admits in court that a certain person is an informant has written specially for takingthefifth-acriminallawblog.com his comments on the Ninth Circuit decision.

INFORMANT RECORDS NOW AVAILABLE THROUGH FOIA

In a significant published decision affecting thousands of cases, the 9th Circuit ruled on July 27, 2011 that defense attorneys and the public may now obtain federal informants’ agency records through FOIA, once the informant is officially confirmed by testimony at trial. In Pickard v. DOJ, 2011 U.S. App. LEXIS 15397, the 9th Circuit determined that “as a matter of first impression and great importance” (Judge Wallace, concurring), federal informant Gordon Todd Skinner’s DEA files must be provided to Plaintiff William Leonard Pickard.

The decision has broad implications for the defense bar, describing for the first time a FOIA method to obtain informant records after their testimony in any case. The decision in Pickard v. DOJ provides a check on prosecutors’ compliance with their obligations at trial to disclose impeachment evidence on government witnesses.

In interpreting FOIA Sec. 5 USC 552(c)(2) whereby informant records are subject to FOIA if the individual were “officially confirmed” as an informant by a federal agency, the 9th Circuit declined to adopt DOJ’s proposed standard that would require a “press release” by a “head of an agency,” instead concluding that Pickard’s explanation — that agents’ testimony should suffice — “makes more sense” in a FOIA context and in view of the legislative history of 5 USC 552(c)(2).

The 9th Circuit observed that since the 1976 enactment of FOIA, DOJ had never issued any regulation or advisory interpreting “official confirmation” under FOIA, nor had any court ruled on the issue. Observing “the cat is out of the bag” regarding informant Skinner’s records, the 9th Circuit determined that agency records of Skinner must be made public, thus opening the door for similar requests by defendants, attorneys and public interest groups for informant records. Although the 9th Circuit noted the decision “may cause trouble for prosecutors and confidential informants,” the availability of informant records through FOIA will assist prosecutors, defense attorneys and the courts in assessing what records are material to the defense, bypassing prosecutors’ prior unilateral determinations in selecting specific records for release (see http://caselaw.findlaw.com/us-9th-circuit/1575518.html).

William Leonard Pickard

http://www.freeleonardpickard.org

crucible27@gmail.com

Tucson, Arizona

Gordon Skinner testified for the government at Wiliam Pickard’s narcotics trial. He admitted being an informant for the DEA and to providing information about Pickard. DEA agents also testified that Skinner was an informant.

After Pickard was convicted he made a Freedom of Information (FOI) request to the DEA for information about Skinner and his relation to the agency. The request was rejected and he appealed, first administratively and then to the District Court. After the DEA’s first motion for summary judgement was denied it made a Glomar motion in which it neither denied or admitted that Skinner was an informant. After the motion was granted Pickard appealed to the Ninth Circuit.

The Ninth Circuit reversed the District Court’s ruling and ordered the DEA to provide an index of documents that would comply with Pickard’s request along with any objections it has to providing individual documents.

The release of FOI documents is governed by the Freedom of Information Act. 5 U.S.C. § 552(c)(2) forbids the release of information about an informant unless the agency has officially confirmed the person as a confidential informant. The DEA argued that since there was no official confirmation it did not have to release the documents. However the Court ruled that since Skinner had admitted his status on the witness stand and since the U. S. attorney had called Skinner as a witness and asked him about his activities as an informant, it was not necessary for there to be an official statement on behalf of the agency affirming his status.

Last month Attorney General Eric Holder announced that government resources will not be used to raid medical marijuana distributors in those states where medical marijuana is legal in compliance with President Obama’s desire not to spend money busting dispensaries. Yet last week the DEA raided Emmalyn’s, a medical cannabis dispensary in San Francisco.

One question that must be asked is who is in charge. Does Holder control the DEA or does the DEA control Holder. President Obama has yet to appoint a director for the DEA. Bush appointee Michele Leonhard is the acting director.