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U.S. District Judge Charles Breyer just wanted to know who was going to determine whether a government agent lied in his courtroom recently. “I want someone to stand up here and say ‘I’m doing this inquiry,’” Breyer said Tuesday. A Drug Enforcement Agency officer had contradicted himself over the reliability of an informant in a drug case, and the judge wanted to know specifically who would be responsible for investigating. “Under separation of powers, I’m not sure the court needs to know,” responded Edward Weiner, an assistant with the U.S. attorney’s office for the Southern District of California. That argument didn’t sit well with the judge. “I understand separation of powers,” Breyer said later in the hearing. “I also understand when perjury or what appears to be improper conduct appears to happen before the court.” The friction arose from Breyer’s attempt to get prosecutors to investigate why DEA agent Dwayne Bareng gave conflicting testimony before invoking his Fifth Amendment right during cross examination on Aug. 16. Bareng had said he did not know why the FBI fired a key informant whom Bareng had later used in a drug investigation. He then said he did know — it had been for lying — before eventually taking the Fifth. Barry Portman, the Northern District of California federal public defender, said last week that while he hopes the investigation will help defendants who face charges — thanks to questionable snitches — he’s skeptical it will have much of an effect. That’s because of a 2002 U.S. Supreme Court decision authored by Breyer’s older brother, Justice Stephen Breyer. Portman is planning to call a meeting of his deputies to discuss that issue this week. Stephen Breyer’s decision says prosecutors don’t have to disclose compromising information about informants until after a defendant turns down a plea deal and opts to go to trial. With those constraints in place, Charles Breyer was outspoken Tuesday on the problems presented by the DEA knowingly employing an informant fired by the FBI for lying. “What bothers me in this case is accountability, as well as the initial offense,” Charles Breyer said. “It appears to me there is a breakdown of accountability in this case.” Particularly problematic, he said, is what Bareng’s superiors in the DEA may have known, along with the fact that information about the informant may have been improperly withheld from at least one defendant in a Fresno case. Southern District prosecutors are conducting the probe after Northern District prosecutors agreed with Breyer’s recommendation that they recuse themselves from the investigation. “Informants have always been a problem,” Portman said. In 2002′s U.S. v. Ruiz, 536 U.S. 622, the Supreme Court overturned a 9th U.S. Circuit Court of Appeal ruling that prosecutors must disclose information on informants before offering a plea deal. For that reason, defense lawyers must forgo a plea deal and risk a trial to find out how strong confidential witnesses are. “The problem in this case was, first of all, if an affirmative defense hadn’t been put forth, we would never have found out” the compromising information, he said. Portman said he plans to hold staff meetings to discuss the implications of the investigation and the constraints of the Ruiz decision on how to deal with cases involving informants. Former federal prosecutors say the issue with informants is nothing new, and that they are inherently dishonest sources with ulterior motives and questionable backgrounds. “One of the great banes of being a prosecutor is having to deal with the informant issue,” said Leo Cunningham, a partner at Wilson Sonsini Goodrich & Rosati and a former assistant U.S. attorney. “There’s so much secrecy to informants, but so much need to disclose their foibles.” Cunningham said that during his eight years as a prosecutor — which ended in 1997 — the DEA was keeping compromising information on informants so close to the vest that even prosecutors had trouble obtaining it. Such problems, said Matthew Jacobs, a partner at McDermott, Will & Emery who left the Northern District U.S. attorney’s office last year, are normal in drug cases. “Every prosecutor knows that dealing with a confidential informant is the riskiest thing you do,” he said, adding that defense lawyers know this, too, and are always looking for ways to gather as much information as they can to impugn such witnesses. In the meantime, an apparently frustrated Breyer — whose desire for a public investigation now seems to be in jeopardy — has scheduled another hearing for Sept. 7, when, he hopes, there will be a more cooperative showing from federal law enforcement. “I ordered the Drug Enforcement Agency to be here today,” he noted Tuesday. “And they’re not.”

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