Accused bank robber wants NSA phone records for his defense

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46 Responses to “Accused bank robber wants NSA phone records for his defense”

  1. Pomfelo says:

    It was only a matter of time before someone made a Freedom of Information request.  My (layman) understanding is that they are technically obliged to turn it over, but most judges interpret the NSA’s leeway in these matters as close to absolute.

    • ocschwar says:

       Oh, the NSA can refuse. But that would be grounds for acquittal of the defendant. (Which is osmething the NSA probably will not care about.)

      • Nell Anvoid says:

        Neat tactic by the defense…counting on the predictable obtuseness and self-preserving venality of a secretive bureaucracy.  It also triggers the usual hackocracy response to new types of requests: don’t set a precedent leading to more work. This would open all sorts of floodgates that would horrify any normal clock-watcher in the public sector.

      • Mordicai says:

         Wait, it would be grounds for acquittal?  I’m no lawyer, how so?  Because the evidence exists but they can’t get it, or…what?

        • Humbabella says:

          I’m not sure what the commenter meant, but I read it not as grounds for the judge throws the case out, but grounds for the jury to have reasonable doubt.

          1) The guy says that he was somewhere else.
          2) We all know for a fact that there is evidence that can prove whether or not he is lying.
          3) The government has the evidence and won’t produce it.

          I understand that the NSA is not going to bend to the whims of a prosecutor going after a robbery charge, but I bet that at least a few people in a typical group of 12 would say to themselves, “Well, if they won’t produce the evidence then obviously it doesn’t prove what they want it to prove, this guy must be innocent.”  (I would probably acquit him for other reasons, I should probably never be on a jury)

          • leidentech says:

             Actually, it sounds like you are EXACTLY the type of person that should be on a jury.  It’s a pity the process is such that you probably will never be chosen.

          • sdmikev says:

            That’s how I read it as well.
            You’d be shocked, they like smart people on juries, I’ve been on 3.. :)
            I get a little pissed at people that work feverishly to avoid being on one, I believe it is a civic duty.  If it’s a hardship, that’s one thing.  If someone is just being fucking lazy, that’s another.  Most people are the latter.

          • Spiro G. says:

            3) The government has the evidence and won’t produce it.
            Wouldn’t the NSA Then be charged for witholding evidence?

        • Henry Young says:

          You have to hand all evidence over to the defence, failure to do so can cause the case to be dismissed.

          • Brandon Rinebold says:

            In this case, the prosecutor (most likely a state) doesn’t actually have the evidence they are being asked to produce so they don’t have to immediately drop the charges because another group didn’t produce requested evidence. Now, if this is a Federal case, then I think he’d have much better grounds for an immediate dismissal.

          • Ari Gatoff says:

            It’s called Brady material. Any exculpatory evidence must be handed over to the defense. However, if the prosecution doesn’t have the evidence then it’s a different story. Here, the prosecution doesn’t have it, another government entity in a different sect of the same gov’t branch probably has the evidence.  

          • Mordicai says:

            Is this bank robbery a federal case? If it IS a federal case, does the NSA count as the same prosecutor? If it ISN’T a federal case, does the NSA still count? I’m not a lawyer, I’m not being snide, I just find this interesting. Would a judge ever dismiss the case, really, on these grounds?

    • Boris says:

      They can simply reply they don’t have the records. 

    • Mike says:

      All they have to says the request is denied due to national security reasons. 

  2. Riccardo Cabeza says:

    It not the NSA’s job to help people. The NSA’s job is to employ the most paranoid Americans in an ever expanding unaccountable bureaucracy.  You little people should know better. Look for the creative hallucinatory answer the DoJ uses to prohibit such a request. 

  3. Listener43 says:

    If the POTUS says this gentleman is Santa Claus, this court will not dispute it.

  4. kmoser says:

    This would only prove, at best, that his phone was not in the vicinity of the bank. It says nothing about the whereabouts of the alleged perpetrator.

    • dragonfrog says:

      Nothing can really prove with 100% certainty the person’s whereabouts – not 50 cellphone videos from his wedding, not incarceration records, nothing.

      All it can do – all any evidence introduced to court can do – is tend to support his being in a certain place and time.  If he called or texted a friend during that time that would tend to further support it, even more so if people who know him are able to testify that he kept a screen-lock code on his phone and didn’t share it, etc.

    • Humbabella says:

      The burden of proof is on the prosecution.  If they can prove his phone was elsewhere making calls then the prosecution would have to have a pretty good story as to why that was.

      • Gunter Hå Olsen says:

        You don’t seem to understand how it works in america. You’re guilty until proven innocent now. Case you didn’t catch the last 12-13 years.

    • Gilbert Wham says:

      People have been convicted due to mobile phone location records.

  5. Ian McLoud says:

    The government is legally obliged to hand over any exculpatory evidence in their possession and if they are unwilling to do so (because it may potentially compromise national security blah, blah, blah) then the charges against the defendant should be dropped.

    Of course, this is logical and will not resemble what transpires in the court in any way whatsoever.

    • Brandon Rinebold says:

      This may come down to a state government being the prosecutor and the Federal gov blocking the request. The prosecutor isn’t refusing the evidence, a different government is. However, it’d still be up to the judge to decide dismissal and I’d say this alone would create reasonable doubt for at least 1 juror.

  6. Wouldn’t this make everyone a criminal?

  7. Brad Gall says:

    Funny when I worked at the courthouse we use to think the guys who made these request were crazy, who knew.

  8. Snig says:

    I would like the phone records of the time my girlfriend got really mad at me cause she told me something important and I couldn’t hear what she had said and so I didn’t say anything and she felt really unsupported, and she didn’t believe that I hadn’t heard her.  Guys, if you’re reading this, help me out here. 

  9. Humbabella says:

    I’d acquit.  The government can’t have it both ways.

  10. rocketpj says:

    Wow, I guess when the feds were deciding to have a secret, invasive and massive wiretap of every citizen they didn’t anticipate that they were handing a get out of jail free pass to every person who asks for that information.

    They are in a bind.  Provide the information and show they were breaking the law (and the defendant maybe was or was not).  Don’t provide it and show they have something to hide, while also letting a potential felon off. 

    I think a great idea would be for everyone accused of anything even remotely requiring location data to request the NSA’s copy of their phone records.  Because we all know they have them illegally. 

    This would provide a lovely end-run around the kneejerk constitution apologists. They will have to choose between supporting an illegal program and letting legions of accused felons off the hook.  I guess the NSA aren’t only ones that get to commit crimes and get away with it now.  Way to go Barack!

    • Boundegar says:

      Come on, you know the system doesn’t work that way. If this gambit works, which I doubt, criminal defense attorneys around the country will sit up and take notice. But in no time, some court will set a precedent that disallows this kind of defense. If not that, even our broken Congress will suddenly get up off their collective ass and pass a law, and that will be that.

      • Charles-A Rovira says:

        I’ve always felt that the problem with ubiquitous surveillance would be its unequal access.

        Politicians, other 1%ers and their minions among the 99%ers always feel that they and only they should have access to the data.

        That is what being “Big Brother” is all about…

        If the fruits of this ubiquitous surveillance, the mined data, meta or not, was made universally accessible in real-time to all, just by Googling it, it would be truly earth shaking and civilization altering.

        The level of criminality, typically the planned kind as opposed to the opportunistic violent kind , would rapidly drop because people would realize that they couldn’t hope to get away with it and be forced to find some other legal way to provide value for money exchanged.

        Look for prostitution and drugs to become legalized and regulated just like alcohol.

        • Boundegar says:

          Ubiquitous surveillance isn’t even ubiquitous. An office I worked in not long ago had a big scary camera, which wasn’t even plugged in. Security theater.

          And this is one reason it won’t be searchable by the likes of us. Plenty of big-box stores have the same non-working cameras, just to scare shoplifters. If you could just use google to find out which ones were real…

          • Brandon Rinebold says:

            > If you could just use google to find out which ones were real…

            Then they’d just be deterring crimes of opportunity rather than planned shoplifting or they’d have to buy actual cameras. Not a massive blow in either case.

          • Bben says:

             Most of the cameras are real some are not – do you feel lucky? I used to install surveillance cams in stores – I Never installed a fake camera. Not even one!

      • peregrinus says:

         Or even simpler, all the thieves and crims will subscribe to phone accounts and pay taxi drivers to keep the phone in their cabs while they go a-robbin’ elsewhere.

    • Rindan says:

      Yeah… you have a flaw in your plan.  You think that the government gives a shit about fairness or rules.  I am pretty sure that the government can track you like a dog, refuse to give up the information, and then toss you in jail even when their tracking could acquit you.

    • The order in question began way before Barack showed up, my friend.

  11. Bobby Fehr says:

    Just because your cell phone wasn’t there doesn’t mean you weren’t.

  12. Jeff says:

    NSA: “Funny thing is sir, we lost those exact records. Sorry we couldn’t help”

  13. Mike Stachewicz says:

    I work as a FOIA paralegal and sometime last year, I saw a request that was denied by the NSA asking for documentation about the cell phone surveillance program on the grounds that that was classified information and that they could neither confirm nor deny the existence of that program. Now that it’s been declassified, I wonder if he actually has legal grounds to request these records.

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