The lawyers for a convicted killer who is seeking information from the FBI in a fight to clear his name are urging a federal appeals court in Washington not to review a decision that went against the government.
A divided panel of the U.S. Court of Appeals for the D.C. Circuit ruled in June that the FBI must disclose to the inmate, Lester Bower Jr., certain documents about the people that he contends are responsible for a quadruple-homicide in Texas.
The appeals court said “there can be no doubt that the FBI in the past has failed to disclose information” favorable to Bower, convicted and sentenced to death in Texas state court proceedings for the homicides. The public interest in government accountability, the court said, outweighs any privacy interest the documents implicate.
Bower’s attorneys, Peter Buscemi and Grace Speights, partners in the Washington office of Morgan, Lewis & Bockius, said in a court filing (PDF) Wednesday evening that the U.S. Justice Department’s pitch for a rehearing misses the mark.
In urging the full D.C. Circuit to pick up the dispute, the Justice Department said the panel decision “is also likely to have significant adverse consequences in future cases.”
DOJ said if the decision is allowed to stand it will require federal agencies and trial judges to second-guess earlier court decisions and habeas corpus proceedings. If the FBI had information favorable to Bowers, DOJ attorneys said, the bureau would hand over the documents to the prosecution team.
Freedom of Information Act litigation “is a particularly inapt vehicle for relitigating questions of guilt,” said DOJ Civil Division lawyer H. Thomas Byron III in court papers (PDF). Byron said there is “no public interest under FOIA in disclosing information to assist a prisoner in a collateral attack on his conviction.”
Bower was sentenced to death in Texas in 1984. Since then, two witnesses surfaced to pin blame on four Oklahoma drug dealers. In 2008, a Texas state judge granted Bower’s request for DNA testing of crime scene material. The results are pending.
DOJ lawyers said several state and federal trial and appellate courts have reviewed Bower’s conviction and upheld it.
“A FOIA court should not presume that it is better situated to determine the strength of evidence concerning Bower’s guilt than the trial, appellate and habeas courts that considered Bower’s conviction” based on comprehensive evidence, DOJ said.
Bower’s lawyers, Buscemi and Speights, the managing partner of the Morgan Lewis office in Washington, said the Justice Department is refusing to “recognize or appreciate the core purpose of the Freedom of Information Act.”
The panel ruling, Bower’s attorneys said, focused on the public interest in intentional FBI withholding of documents and did not dwell entirely on Bower’s claim that he is innocent.
Bower’s counsel said DOJ’s forecast of future harm, if the panel decision remains in play, is “unsupported and unsupportable.” The appeals court opinion address a narrow, fact-specific question, Bower’s attorneys said.
The government, Speights and Buscemi said, “offers no facts or evidence, but only its own self-serving speculation” about possible harm in the future.
“Using the purported privacy interests of three Oklahoma drug dealers as an excuse–interests that the government would not value highly in any other context–the government seeks a rule that in effect would insulate the conduct of law enforcement officials from any public scrutiny,” Bower’s lawyers said. “Such exaltation of government secrecy would run directly counter to the provisions and purposes of the FOIA.”