Border Patrol agent Brian Terry was killed in the line of duty by a gun provided to Mexican gangsters from an FBI informant, and the gun was paid for by taxpayer money. There is no telling, at least from the information we’ve been given, whether the witnesses and the suspects were deported to Mexico, either.
Operation Fast and Furious was a major blunder on many fronts, namely that they led to no arrests and were a great waste of resources. The FBI, DEA, U.S. Marshals, and the ATF all have ties to this operation, and it remains to be seen whether there was any government misfeasence. A cursory glance of the facts shows that the government may be involved much more than it has let us believe to date.
When the government breaks the law to get an arrest that shows it has no regard for the constitution or your civil rights. To safeguard your rights, courts will refuse to allow in evidence against you if it finds that the evidence was obtained illegally. This “exclusionary rule” has been upheld repeatedly over the years and in Texas it’s statutory. Article 38.23 of the Texas Code of Criminal Procedure allows for a jury to exclude any evidence that they feel was obtained in violation of the law. However, a jury will not be able to force the government to disclose the identity of an informant.
Normally, a confidential informant will not be disclosed unless the defendant can show that the informant was a witness to the charged crime, or if the witness was used as a tool to entrap the defendant. There are many factors that a judge can consider when ordering the State to disclose an informant. In the case of Fast and Furious, there is evidence that the informant bought the gun used to kill the Border Patrol Agent, and that the informant may have even been at the scene of the shooting. There is also evidence that the FBI informant was a “stone cold killer” and removed from other agency informant lists for that purpose. If a defendant was charged in a case involving this informant then it is very likely that the government would be forced to disclose his identity.
However, that’s never a guarantee. Under Rule 508 of the Texas rules of Evidence the defendant must prove that the informant will provide useful information, and the defendant’s motion must be more than “mere speculation” or conjecture. If a judge decides that the defendant is entitled to an in-camera viewing of the evidence then the judge will call the “handler” of the informant into chambers and ask questions about whether the defense’s arguments has any weight. Only after hearing the evidence in camera will the judge decide whether to require disclosure of the informant.
When a defendant is charged with a crime where an informant is at issue, that defendant needs an attorney who knows how to get all the information possible to present all defenses. An attorney needs to know that it is vitally important to investigate all procedural mechanisms, such as requesting a 508 hearing, in order to zealously represent his or her client.
At the law offices of The Law Office of Matthew D. Sharp we will work hard to protect your rights if you are charged in a violent crime. We will diligently investigate your case to ensure that all defenses are explored and we will test the evidence that the State intends on using against you. Call today for a free consultation.
