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It’s been said that outgoing FBI Director Louis Freeh is the ultimate Teflon Man, having presided over more high-profile scandals and screw-ups than any other top G-man since the bureau’s creation. There was the aftermath of the Waco assault (which occurred before his tenure), the Wen Ho Lee atomic-secrets fiasco, the Robert Hanssen spy scandal and a series of cases in Boston in which the withholding of evidence to protect valued informants led to the conviction of innocent men in murder cases. Now we have the missing Timothy McVeigh files. But the Teflon that has coated FBI leaders and the bureau itself is nothing when compared to that of an organization that has made it possible for agents to hide exculpatory evidence and to fake and flub forensic lab tests in the scandal-ridden FBI Crime Lab. They can spin and fabricate statements and “confessions,” which conveniently are almost never tape-recorded, and they make secret deals with informants that would make jurors’ hair stand up if by chance they were to learn of them. The organization that makes all of this sleaze possible is the U.S. judiciary. PROTECTIVE DOCTRINE In 1943 the Supreme Court decided McNabb v. United States, No. 318 U.S. 332, establishing the doctrine that the federal judiciary had “supervisory power” over the administration of federal criminal justice. This doctrine sprang, many scholars believe, from the searing dissents of Justice Louis Brandeis in the 1920s entrapment cases. In McNabb, Justice Felix Frankfurter noted for the Court that while the federal judiciary’s review of state convictions was limited to enforcement of constitutional rights, its review of federal convictions was not so narrowly confined. “Judicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence … [which] are not satisfied merely by observance of those minimal historic [constitutional] safeguards.” The resulting rule entrusted supervision of federal investigatory tactics and policies to “the learning, good sense, fairness and courage of federal trial judges.” The McNabb doctrine began to be whittled down as early as the mid-1970s, when the Supreme Court expressed concern about judges imposing their own “notions of good policy” on governmental officials. Exaggerated concerns about separation of powers led the Court to deem law enforcement tactics more of a legislative and executive than a judicial matter. And when the “harmless error” doctrine asserted itself, the supervisory-powers doctrine became utterly irrelevant. SHRINKING PROTECTION In the 1988 case Bank of Nova Scotia v. United States, No. 487 U.S. 250, for example, the Court held that the doctrine could not be used to censure and redress government misconduct unless the defendant was actually prejudiced by it. The threshold for demonstrating prejudice became higher and higher, and today it is nigh impossible to obtain even an evidentiary hearing — and subpoena power to delve into hidden government files — unless the defendant can prove his case before obtaining such a hearing. A Catch-22 seems to have replaced the supervisory-powers doctrine — you must prove government misconduct, and show that you would have been acquitted but for the conduct, before you can get a hearing and force open the government’s secret files. If the FBI is arrogant, it is because it has been allowed to be so by the courts. Today, federal courts overlook an enormous range of government misconduct. Unless Timothy McVeigh’s lawyers find some smoking gun amid the papers, they might find a judge who will lament the FBI’s failure to turn over the documents in a timely fashion, but they will almost certainly fail to persuade the courts that the error is anything but harmless. Federal judges have found suppression of evidence of enormous potential exculpatory significance to be “harmless beyond a reasonable doubt,” and so it is virtually impossible that any of the belatedly discovered McVeigh documents would be sufficient to upset the conviction of a man who, after trial, confessed to an infamous crime. McVeigh may not have suffered prejudice from the FBI’s lapse, but the federal system of justice will not recover until the courts re-establish supervisory control over the federal investigatory behemoth. Harvey A. Silverglate is a partner at the Boston firm of Silverglate & Good.

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