Do you still have the right to face your accuser? Please help, I think our lawyer may have really dropped the ball here....

Civil Rights 0 views 3 answers
My boyfriend who is a first time offender was found guilty in Federal Criminal court of possession of a controlled substance with intent to distribute and possession of a firearm in furtherance of drug trafficking. He hasn't been sentenced yet but each charge carries a mandatory minimum 5 year sentence. The probable cause that the local police (it was a local case until the Feds for unknown reasons decided to pick it up the case) used to get a search warrant was either entirely or almost entirely made up. There were 2 informants named in the probable cause. One of them was referred to as only a "concerned citizen" and the other was a man who my boyfriend met briefly once or twice yet the police claimed in their probable cause statement that this man said he sometimes drove my boyfriend around while he sold drugs and various other things like that which were 100% false. A few days after the suppression hearing my bf's lawyer turned in a statement from this man who said he has never spoke to the police or anyone else about my bf and that everything the police said that he said was completely fabricated by them. However the judge overlooked the fact that the police lied and said that even without this man’s statement there still would of been enough probable cause (the concerned citizens statement is the ONLY other probable cause) to issue a search warrant. Now, my bf's lawyer (who is supposed to be one of the top criminal attorneys in the state) has always maintained since the beginning that the confidential informant would never be revealed and that our only hope was to figure out who this informant was ourselves and then he would be able to question them in order to check for discrepancies in what they said to the police and what the police say that they said in their probable cause statement. We were never able to figure out who this confidential informant was and I firmly believe that if that person was found and questioned it would come out that the police lied when giving this informants statement so that they would have collaborating information. I have no doubt that if this person was found and questioned it would either come out that the police made a large part of their statement up OR that that there isn't even an informant and that they made the person up entirely. So after my bf was found guilty I began researching appeal cases hoping to find something that could maybe help him when he appeals. That is how I found out that in cases similar to my bf's it is common for the defense attorney to file a "motion to identify the identity of the confidential informant". My bf's attorney never filed any motions like that, he never even really mentioned the concerned citizen which is odd since it was their statement and their statement only that led to a search warrant being issued. I was on top of everything being filed in the case- his attorney kept us informed and sent all the documents filed in the case to me and I was on PACER everyday to look at anything new that was filed in the case. I emailed the attorney and asked him why this motion was never filed but he hasn't replied. My bf plans to use the same attorney for the appeal, I think that is a huge mistake. My question is (sorry so long) what possible reason would his attorney have in not attempting to have the informants identity revealed? I don’t know much about the law and am I just missing something here or is his attorney not doing his job? I've done hours and hours of research online and haven't been able to find an answer to my question; I’m hoping someone here can help me. And shouldn't my bf get a different attorney for his appeal since this one has already showed us (or me actually, my bf refuses to believe anything other than this attorney is on his side) what he can’t do?

Attorney Answers

3
John Kaman ·
I acnnot speak for OR as I practice in CA, but when an informant is involved in a case, it is a common defense tactic to make a motion to discover his/her identity. BUT, the goal is not to question the informant to prove the police are lying. Usually the CI is an undercover cop and the DA will refuse to blow his cover. If the DA won't produce him, then the defense is in a good position to have the case dismissed. You'll have to keep after your lawyer as to why he didn't try that.
0 upvotes
Jason Daniel FilesDivorce / Separation LawyerLittle Rock, AR ·
Based on the facts you have provided, it is doubtful that a motion to identify the informant would have been successful. The government does not have to identify an informant who is not called to testify. Look at cases with the term "percipient witness". The only testimony necessary for the conviction in this case appears to have been that of the officers. However, as you have seen, their testimony could have been suppressed if the warrant was granted in error. When the one witness provided the statement that the police had falsified information, that leaves only the statement of the "concerned citizen"; if this was a person whom the police had no way of showing was reliable, then it should not be enough to support a warrant. If the judge said that he was not relying on the statements from the other witness, then it sounds like you have a very good case on appeal. The identity of the confidential informant is not important if the police did not provide any basis for his reliability. I don't think your trial attorney missed anything by not filing to have the identity revealed, and if your boyfriend has confidence in him and already has a relationship, I would stick with him. He will probably want to succeed on the appeal all that much harder than someone who is new to the case.
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Theodore Robinson ·
While a Motion to discover the name of the informant may or may not have been successful, it probably wouldn't have helped your boyfriend all that much anyway. Usually, the Judge will hold in the probable cause if there is an independent witness as you mentioned, despite new contrary information about the informant. However, I disagree with a prior answer about continuing to use the same attorney for the appeal. I always make it a habit to have my client hire a different attorney for the appeal if I lose a case. That way, the new attorney can make claims about anything wrong in the trial, including anything I may have done wrong, in order to get the client out of jail. In many situations, the trial attorney may not even know what they did wrong and an appellate lawyer will raise an issue that was never raised before at trial. I always recommend a new attorney for an appeal so they can take a fresh look at the case and do whatever they must to help the client. Also, sometimes, if a trial lawyer has made a mistake during the trial, he or she is not as willing to raise it on appeal because it will only highlight their mistake. This is especially so if incompetentcy of counsel may be an issue. How does a trial attorney raise such an issue upon themselves? They can't. In my opinion, its usually best to hire a new attorney for the appeal.
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