A divided federal appeals court in Washington has ruled against the Federal Bureau of Investigation's refusal to provide a death row inmate information about the men he believes committed a quadruple homicide in Texas in 1983.
The U.S. Court of Appeals for the D.C. Circuit ruled 2-1 this week in ordering the bureau to provide documents to the inmate, Lester Bower Jr., about three Oklahoma drug dealers whom Bower alleges are the real killers. In the alternative, the court said, the agency must at least search for records and argue why any document should not be released.
The court said lawyers for Bower proved the public’s interest in knowing whether the FBI is keeping records secret that could exonerate a man on death row outweighs the government’s concern over protecting the privacy of the men whom Bower blames for the murders.
“The fact that Bower has been sentenced to the ultimate punishment strengthens the public’s interest in knowing whether the FBI’s files contain information that could corroborate his claim of innocence,” Judge David Tatel said for the panel majority, which included Judge Judith Rogers. The court's opinion is here.
Bower, represented pro bono by Morgan, Lewis & Bockius in the appeals court, was convicted and sentenced to death in 1984. Since the conviction, two witnesses have come forward to implicate four Oklahoma drug dealers in the murder. A state judge has stayed Bower’s execution and granted a motion for DNA testing of crime scene evidence. The state proceedings are pending.
Bower’s attorneys in January 2008 filed Freedom of Information Act requests with the FBI and the Executive Office for United States Attorneys seeking information about the bureau’s investigation of the killing of four men at a ranch near Sherman, Texas. The shooter used a silencer, according to markings on the 11 bullets pulled from the victims’ bodies.
The FBI gave a “Glomar” response to Bower in which the bureau neither confirmed nor denied the existence of the records about the Oklahoma men. (The response is named after the Hughes Glomar Explorer, a ship used in a CIA project to recover a sunken Soviet submarine.)
Justice Department lawyers said providing Bower any information at all about the Oklahoma men would unfairly link them to a quadruple homicide and violate their privacy interests. Bower’s lawyers argued the three men have significant criminal records and would suffer less embarrassment or reputation harm than law-abiding citizens.
The appeals court Tuesday said the FBI does not have to provide information about the men that is not related to the investigation of the 1983 murders. “The public’s interest is in knowing whether the FBI’s files contain information that could corroborate Bower’s claim of innocence, not in knowing all information the FBI may have about the three men,” Tatel wrote.
Writing in dissent, Judge Brett Kavanaugh said any public interest in the information the FBI is holding “is lessened in the FOIA context by the existence of traditional criminal and civil litigation processes.”
Kavanaugh said other courts have already addressed and rejected Bower’s claims the government withheld favorable information from him. He said Tatel and Rogers have crafted a “death penalty exception” in FOIA litigation that overrides the protection of third-party privacy interests. The judge said only Congress and the executive branch have the authority to craft such an exception.
“In justifying its new death penalty exception, the majority opinion lobs a rhetorical volley, saying that the opposing position would allow the government to deliberately and knowingly kill an innocent man,” Kavanaugh wrote. “That is wildly inaccurate. The traditional processes such as habeas, clemency, and the like are constitutionally and statutorily designed to prevent such a travesty of justice.”
Tatel, in the majority opinion, said Kavanaugh’s approach in the case “risks producing absurd consequences that we highly doubt Congress intended.” The majority panel said the D.C. Circuit would have to rule for the FBI even if the appeals court knew the agency had documents that the three Oklahoma men were the real killers.
Morgan Lewis partner Peter Buscemi, who leads the firm’s U.S. Supreme Court and appellate practice, argued for Bower in the D.C. Circuit in January. Buscemi was not immediately reached for comment today.
“The disclosure of the documents will help to demonstrate the significance of the FBI’s and the DOJ’s failures to abide by their Brady obligations in a capital murder case,” Buscemi said in court papers.
Buscemi said the requested documents “touch on the core objective of FOIA—to shed light on what the government is up to regarding its legal obligations—when the public interest in the administration of the death penalty in Texas is high and the privacy interest of persons allegedly involved in a 26-year-old investigation is diminished.”