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WASHINGTON -- In
an oversight that could impact cases nationwide, the FBI hasn't
routinely searched a special computer space where agents store
investigative documents to see whether those materials should be sent
to defense lawyers, Congress or special investigative bodies like the
Sept. 11 inquiry.
The existence of
the unsearched "I-drive" computer files, brought to the
attention of The Associated Press by concerned FBI agents, could give
lawyers an avenue to reopen numerous cases to determine whether
documents that could have aided the defense of criminal defendants
were withheld.
The FBI is
uncertain about the nature or breadth of the documents on the
computer space and has asked its internal investigation unit, its
inspection division, to determine how many documents on I-drives in
FBI offices across the country did not make it into official case
files, officials said Monday.
If a large number
are found, a review would begin to determine whether they should have
been turned over to defense lawyers, bodies like the Sept. 11
commission or Congress, officials said. FBI supervisors said they
were unaware of the problem until it was brought to their attention
by AP.
"The only
official records system the FBI has is our paper records. At no time
did we ever ask anyone to look at the I-drives," said Robert J.
Garrity Jr., the FBI deputy assistant director in charge of records
management.
"We'll
correct whatever we need to, learn from it and make sure it doesn't
happen again," he added.
Garrity said the
I-drive was created in 1996 and is used by agents to upload
investigative documents like interview reports, investigative inserts
and teletypes so their supervisors can approve putting them into the
FBI's official case files, which are still in paper format.
He acknowledged
that those documents that do not get into the FBI's official case
files or its automated computer case system would not be searched for
materials that should be turned over to defense lawyers or Congress.
Under a landmark
Supreme Court case known as Brady v. Maryland, prosecutors and police
are required to disclose all materials they possess that might help
defense lawyers prove the innocence of clients.
Prosecutors
operate under an honor system, and numerous times in recent years
there have been prominent cases in which relevant or exculpatory
documents haven't been produced, touching off legal battles.
Lawrence Barcella,
a prominent Washington defense attorney and former federal
prosecutor, said the discovery of the FBI's unsearched computer
storage space could affect current cases in which guilt or innocence
is still at issue and past cases where questions of the fairness of
sentences or credibility of witnesses might be impacted.
"Under
criminal case law, the failure to disclose may well result in a
defendant being denied a fair trial. So it doesn't matter if it was
negligence or willful, if potentially exculpatory information was not
produced," Barcella said.
Barcella said FBI
agents have complained for years that they have inadequate computer
systems, and that remains a problem despite recent improvements under
FBI Director Robert Mueller.
The FBI
acknowledged last week that some documents unearthed by AP for a
story Wednesday about the Oklahoma City bombing were inexplicably
never turned over to its own investigators or to lawyers for Timothy
McVeigh, who was executed for the April 1995 attack.
The documents
included at least one teletype that clearly mentioned McVeigh's name,
yet were never produced to defense lawyers. And in 2001, FBI
officials belatedly found about 4,000 pages of relevant documents
that also never were turned over, prompting a one-month delay in
McVeigh's execution.
The retired chief
of the FBI's Oklahoma City investigation, Dan Defenbaugh, said he
learned of the existence of the I-drive during the 2001 controversy
and was surprised the FBI wasn't searching it for materials required
to be turned over to defense lawyers.
"I did not
know prior to 2001 that agents were storing documents on this I-drive
and that it was not routinely being searched," Defenbaugh said.
"There are a number of executives who I have talked to since
then that were as dumbfounded as myself."
Defenbaugh said
the failure to ascertain, search and recover documents from computer
hard drives should be the responsibility of the FBI computer
specialists, not the investigating agents.
"That's not
our job. That is why we have computer specialists," he said.
Meanwhile, FBI
officials are pushing implementation of their next-generation case
management system which will give the bureau its first fully
computerized document system as early as this summer.
The FBI is working
with the National Archives and Records Administration to ensure the
rollout is smooth and meets all the requirements of government record
keeping.
When the system is
fully implemented, FBI agents will be able to search all
investigative records by computer to ensure none are missed for
production to lawyers and Congress, officials said.
On the Net:
FBI site: http://www.fbi.gov
Copyright ©
2004, The Associated Press
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