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A defendant awaiting trial on federal bank robbery charges recently asked the government to disclose potentially exculpatory but controversial material: phone call records collected by the National Security Agency as part of its surveillance program. To everyone”s surprise, the judge granted the defendant’s motion.

Terrance Brown, who is awaiting trial on conspiracy charges for organizing a gang of robbers to plan a robbery that ended in the murder of an armored car guard in 2010,  asked the government for access to his own cellphone records from July 2010. The Associated Press reported that prosecutors were missing that month of Brown’s phone records because his service provider at the time no longer has them.

Brown’s attorney argues that the records would show Brown wasn’t involved in a previous robbery attempt that forms part of the state’s case. The prosecution is relying on the caller information of his alleged co-conspirators to prove Brown’s involvement. His attorney, Marshall Dore Louis, wrote in a motion asking the US District Court in Fort Lauderdale to subpoena the NSA for the records:

The records are material and favorable to Mr. Brown’s defense; they are evidentiary and relevant to the issues in trial; they are not otherwise procurable by exercise of due diligence; the application is made in good faith and is not intended as a general fishing expedition; and, the records are necessary for Mr. Brown to meet the government’s evidence in this matter.
 

Many commentators dismissed the “stunt,” saying that the government would fall back on the the “interests of national security” to avoid such a disclosure. Justin Peters of Slate referred to the motion for the records as “a maneuver that some might call far-fetched, but which I call wonderful.”

But it turns out the motion wasn’t so far-fetched after all. The Judge ruled in Brown’s favor, ordering quick compliance:

The Court regrets the short deadline for compliance but notes that the evidence that defendant Brown seeks pertains to a trial that has been underway since May 31, 2013, and any order requiring the production of any materials sought would become meaningless if such items were not produced in sufficient time for the defense to use them in its case.
 

In response to the ruling, prosecutors filed a motion that claims the NSA does not collect such data. The filing is available here. At that point, Brown’s attorney withdrew his request.

The complex legal situation, however, has continued to interest the legal community (and otherwise). Below is an excerpt from the blog of Tulsa lawyer, James Wirth:

Paradoxically, federal laws seem to prohibit disclosure of the domestic spying program, but once knowledge of the program becomes public, other laws require the government to provide access to the information gathered through the program if it’s relevant in a criminal case. Before the British newspaper published the leaked document verifying the government had stored phone records, attorneys had no reliable means of showing the government had such records. Now that the cat’s out of the bag, so to speak, that probably won’t be the last time lawyers seek access to the NSA’s vast domestic telephone traffic database in a criminal case.

 

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