Evidence Destruction Flashcards
What evidence was actually destroyed?
The way the GPS, microphone, and relay were wired into the van. That could have showed that someone could not just monitor, but control the van.
How do we know that was destroyed.
We know from the agent at the port of entry that the apparent microphone was ripped out. That’s at ER-354-55. We know from the government’s automobile expert that the GPS and a relay were taken out, and we know that at least some of the wiring could not be preserved. ER-602-03. Regardless that expert also testified that he could not tell how devices were wired together. ER-594 and 609-610
Couldn’t you have just tested this yourself.
I want to be clear that I was not counsel below so my knowledge is limited to the record. But the record shows that Mr. Gonzalez’s auto expert would have fared no better. The pictures from the automobile expert’s report, this is at SER-70-71, show a hornets nest of wires. There is no reason to think that Mr. Gonzalez’s expert would have done any better.
Why was this raised as a Brady violation below?
I cannot answer that question, as I was not the trial lawyer. What I can say is that might have seemed like the best claim as tensions were running high after the mistrial.
Isn’t this claim barred because there is a factual dispute on plain error.
There is not a factual dispute. The government quibbles with whether the device was ripped out or cut out or disconnected to preserve as much as wiring as possible. That is immaterial. All that matters is what the government’s expert said: The GPS device, microphone, and relay were removed in such a way that they could not be reassembled.
Why wouldn’t you hire an expert to explore what was likely. It feels like you get a windfall by saving it for appeal.
Again, I was not counsel below. But trial counsel apparently decided that putting another automobile expert to go on the stand to talk about what was unknowable about the vehicle would have wasted time. This expert also is well regarded, and has worked for both defense lawyers and the government.
You ask for dismissal with prejudice. Why is that warranted?
Cooper. Although the opinion does not say if it is affirming that dismissal with prejudice, the fact that the government was appealing–rather than re-indicting–suggests that dismissal was with prejudice. So too with Zaragoza-Moreira, where it gave the district court discretion to dismiss. That makes sense. in the context of brady violations, dismissal is with prejudice if the government acts in bad faith. Yet that is exactly what happened here.
What is your best case to show that this is error that is plain.
Cooper, and Zaragoza. Cooper shows that destruction of evidence is error even if the defense is able to claim–without objection what the evidence would have showed–if it had not been destroyed. Zaragoza shows that the government acts in bad faith when it destroys evidence commonly found in certain types of border offenses that is generally exculpatory.
Couldn’t you just argue this in closing?
Not to the same effect according to Cooper. That case held it was insufficient that the government was even willing to stipulate that the destroyed evidence showed what the defense said it showed. And that it is because stipulations do not have same narrative force as a bare stipulation.
You repeatedly decline to address the fourth prong of plain error review in your briefing.
I apologize for that your honor and confess I was alarmed by the same in preparing for oral argument. But here is what I would have written: It necessarily undermines the integrity of the judicial system if a person can be convicted after his prosecutors destroy exculpatory evidence in bad faith.
But that’s the problem, we do not know if it would be exculpatory.
We don’t know the extent to which it would be exculpatory because the government destroyed evidence. That is always the problem with evidence destruction. So instead we look to the apparent exculpatory value. And here, as in Cooper, there was a lot of apparent exculpatory value. If we look at the most-likely scenario: that a GPS device was connected to a microphone and a relay that would allow it shut off the car. That makes it more likely that someone was monitoring the vehicle that makes it more likely that Mr. Gonzalez did not know what he was doing. That is exculpatory.
Didn’t Smith involve a different issue
Slightly, but it remains relevant to the confrontation clause analysis. If an expert conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts” and violates the CC. At 780. Smith rejected Arizona’s view that this did not violate the confrontation clause so long as the testifying expert adds an independent view on top of it. Indeed, the expert in Smith repeatedly said that the out of court expert complied with standard practices.
