DOJ Argues FBI Had No Duty to Disclose Evidence of Perjury

As TalkLeft noted in 2002, Joseph Salvati had good reason to sue the FBI. The nation's premier law enforcement agency encouraged false testimony against Salvati at his state court murder trial because it knew the murder had actually been committed by FBI informants. Protecting its informants became a higher FBI priority than protecting the liberty of innocent people.

In its defense of Salvati's lawsuit, the Justice Department attempted to convince District Court Judge Nancy Gertner that the FBI didn't know Salvati's accuser would commit perjury, and that even if it did it had no duty to disclose evidence of Salvati's innocence because Salvati was being prosecuted in a state court. As TalkLeft noted in 2007, Judge Gertner rejected those arguments and awarded $101.7 million to Salvati and three others who were wrongly convicted of the murder.

Salvati is still waiting to collect. He's 76 years old, living with his wife in a one bedroom apartment. They get by on Salvati's social security benefit and his wife's small pension. The FBI should have apologized and written a check years ago. Instead, the Justice Department continues to insist that the FBI did nothing wrong. [more ...]

The FBI appealed Judge Gertner's decision. This week a Justice Department lawyer told a panel of First Circuit judges that the evidence before Judge Gertner failed to support her findings. Given the deference that appellate courts give to a district judge when she decides what the evidence does or doesn't prove, that argument is usually a loser. It's an even tougher sell when the judge writes a detailed decision (pdf) pointing to the specific evidence she accepts as true.

Judge Gertner's summary of her findings tells a chilling story:

The plaintiffs were convicted of Deegan’s murder based on the perjured testimony of Joseph "The Animal" Barboza ("Barboza"). The FBI agents "handling" Barboza, Dennis Condon ("Condon") and H. Paul Rico ("Rico"), and their superiors -- all the way up to the FBI Director -- knew that Barboza would perjure himself. They knew this because Barboza, a killer many times over, had told them so -- directly and indirectly. Barboza’s testimony about the plaintiffs contradicted every shred of evidence in the FBI’s possession at the time -- and the FBI had extraordinary information. Barboza's testimony contradicted evidence from an illegal wiretap that had intercepted stunning plans for the Deegan murder before it had taken place, plans that never included the plaintiffs. It contradicted multiple reports from informants, including the very killers who were the FBI’s "Top Echelon" informants.

And even though the FBI knew Barboza’s story was false, they encouraged him to testify in the Deegan murder trial. They never bothered to tell the truth to the Suffolk County District Attorney’s Office. Worse yet, they assured the District Attorney that Barboza's story "checked out."

Nancy Gertner is an extraordinarily capable judge. Her carefully written, 224 page decision should easily withstand the Justice Department's assertion that she got the facts wrong.

Appellate challenges to a judge's legal reasoning are usually more productive than attacks on a judge's fact-finding, but the Justice Department isn't likely to persuade the court of appeals that Salvati's prosecution by state authorities for a state crime in a state court created no duty for the FBI to disclose evidence of his innocence.

Judge Juan R. Torruella, a member of the three-judge Appeals Court panel, noted that the FBI played a key role in the trial. "The state had no case until you provided Barboza," he said.

Salvati would like to see the FBI and the Justice Department get on the side of justice.

"They just don't care," he said. "That's the bottom line. They'll never say they're sorry."

Salvati should win the appeal. The only question is whether he'll live long enough to collect his share of the damages.

< The National Day of Prayer and Obama's Middle Path | Waiting For Rove >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Outrageous! (none / 0) (#1)
    by Doc Rock on Fri May 08, 2009 at 06:44:14 AM EST
    Where's the Obama leadership on this?

    of course (none / 0) (#4)
    by txpublicdefender on Fri May 08, 2009 at 08:45:08 AM EST
    Can't wait to blame Obama for this, as if he is somehow involved in the arguments in this case.  Please.

    Did he not say... (none / 0) (#5)
    by kdog on Fri May 08, 2009 at 09:00:32 AM EST
    he would un-politicize the DOJ?  Whats more political than one agency covering up for the misdeeds of a sister agency?  

    come on (5.00 / 1) (#6)
    by txpublicdefender on Fri May 08, 2009 at 09:51:19 AM EST
    I'm pretty sure what he meant by unpoliticizing it was that decisions should be made based on the law and the evidence and not based on whether someone was Republican or Democrat or whether a prosecutorial or investigative decision would help or hurt the administration or a particular party.  This doesn't have anything to do with that.

    This is a case about federal prosecutors and DOJ lawyers representing federal law enforcement doing what they always do, sadly, which is to protect the asses of law enforcement when they screw up terribly.  It's not about Obama or politics.

    This is a case of a terrible injustice.  Why can't we just deal with it as that instead of turning it into yet another outlet to get out anti-Obama screeds?


    one more thing (none / 0) (#7)
    by txpublicdefender on Fri May 08, 2009 at 09:53:28 AM EST
    I read Judge Gertner's very long decision in this case back when it came out, and I'd be shocked if it were overturned.  She was very careful and thoughtful in her decision-making and the government's liability is clear.  The idea that because it, ultimately, was a state prosecution, and therefore not their fault is laughable.  As Judge Gertner found, the state had no case against these people until the feds delivered to them their lying, murdering informant to point the finger at these men.

    Then why is the DOJ... (5.00 / 1) (#9)
    by kdog on Fri May 08, 2009 at 10:00:39 AM EST
    still fighting the decision?  

    Pay the man and apologize.


    Deal with it? (none / 0) (#8)
    by kdog on Fri May 08, 2009 at 09:58:38 AM EST
    By "deal with it" do you mean just accept the piss-poor version of polluted justice the DOJ and FBI roll out?

    If the pres can't sort out the agencies and put a stop to such obvious gross injustice...who can?  If not Obama, who should we b*tch about? I mean we don't get to vote for FBI agents or DOJ lawyers....we get to vote for pres.


    Here is why (none / 0) (#10)
    by herb the verb on Fri May 08, 2009 at 12:03:19 PM EST
    Because Obama is the President and appoints an Attorney General, who serves at his pleasure, to execute the laws through the Justice Department.

    Who else should we hold accountable aside from Holder and Obama? The tooth fairy? Magical "justice" elves hiding behind a mushroom?


    We consider Bush responsible ... (none / 0) (#12)
    by cymro on Fri May 08, 2009 at 02:09:10 PM EST
    ... for his administration's injustices. If Obama doesn't take action to reverse them, why should we not consider him responsible for that lack of action? This is not an "anti-Obama" statement, it is simply an observation about how our system of government operates. Remember Harry Truman's sign.

    Your Department of Injustice.... (none / 0) (#2)
    by kdog on Fri May 08, 2009 at 08:07:30 AM EST
    at work...scratch the FBI's back and they'll scratch the DOJ's...liberty, freedom, and justice are left with a big itch.  Informants come first...aka the lowest of the low.

    There is a solution (none / 0) (#3)
    by NMvoiceofreason on Fri May 08, 2009 at 08:15:35 AM EST
    Make lying to the court about an offense have the same penalty as the offense, not some meaningless bar referral. If they knew that lying about murder would get them life in prison, they just would not let it happen.

    Call it the "Truth for Justice" act.

    Sometimes (none / 0) (#11)
    by JamesTX on Fri May 08, 2009 at 12:43:51 PM EST
    I think that might be a good idea. On the other hand, the immunities afforded public servants is a tradition that goes back as far historically as the traditional defenses available to the accused which have been taken away by the conservative movement. If the prosecutors and police had less power to begin with, then their abuse of it would be less of a public hazard. If traditional assumptions of innocence and due process were functioning for the defendant, then it would go a long way in canceling out dishonesty in the prosecutors. That is, if the system was working properly (checks and balances), they would need more than lies to convict or try someone to begin with. They would need evidence.

    We might be better served to simply restore the rights of the accused, rather than just creating another avenue for arbitrary prosecution.


    The accused has no rights (5.00 / 1) (#13)
    by NMvoiceofreason on Fri May 08, 2009 at 03:14:06 PM EST
    if the prosecution can lie or let false evidence be presented to the courts.

    The first duty is truth.

    The second duty is justice to all.


    I agree, but (none / 0) (#15)
    by JamesTX on Fri May 08, 2009 at 06:52:16 PM EST
    as always, our highest and most superordinate values are the most abstract and difficult to define -- like truth.

    The defense and safety of the citizen, and therefore the promise of justice, can't be based on the assumption that the authority is honest.  The idea that justice is guaranteed by ensuring the virtue and honesty of the government official, and then giving the official unlimited power, is flawed. That isn't the philosophy our founders started with -- it is what they sought to replace with something better.

    The "virtuous official" approach was a failed philosophy, and our founders knew it. It is the old world assumption, which led to ideas like the divine rights of kings and such. The assumption our founders started with is that power corrupts, and hence governments can't be trusted -- in principle. Nor can their agents. The people we place in positions of power will be corrupted and they will be dishonest. The structure of our government was therefore designed to protect the citizen, not by the guarantee of honesty in the government and its agents, but by limiting their power. We have lost that message. The conservative movement has again endowed the prosecutors and police with unlimited and unquestioned power (like kings with divine rights), and they are trying to convince us that justice is guaranteed if those people are just properly vetted. In the old world, that vetting was based on the argument that the officials were approved of by theologians as being representatives of god, or something similar. Nowadays, it is based on a more plutocratic idea that they have been vetted by the wealthy and are in no way "dirtied" by prior accusations of other officials with power.

    That approach doesn't work. It never has worked, and it won't work now. The only way to balance the scales is to limit the power of the official, which renders their lies less dangerous. It is much easier to limit their power than to guarantee their virtue.


    this would be (none / 0) (#14)
    by cpinva on Fri May 08, 2009 at 05:25:24 PM EST
    the new and improved, eric holder DoJ?

    sounds like that cheap, brand X one to me.