The FBI's I-Drive and the Right to a Fair Trial
| Author | Allison J. Doherty |
| Position | J.D. Candidate, The University of Iowa College of Law |
| Pages | 04 |
Allison J. Doherty: J.D. Candidate, The University of Iowa College of Law, 2006; B.A., Cornell College, 2003. This Note is dedicated to the anonymous FBI agents who disclosed the existence of the I- drive. I thank my parents, John and Jan Doherty, for their support.
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In March 2004, Associated Press reporter John Solomon, on a tip from distressed Federal Bureau of Investigation ("FBI") agents, revealed the existence of the FBI's "I-drive."1 The FBI has used the I-drive, a server on which digital information is stored, since 1996.2 After agents place their initial investigative reports on the I-drive, an FBI supervisor examines the material and determines what will be transferred into the FBI's official case files.3
The FBI's use of the I-drive is controversial because the FBI does not search it when the agency is required to release evidence to defense lawyers.4Rather than turning over all of the evidence in its possession, including evidence on the I-drive, the FBI only turns over evidence in its official case files.5
The purposes of this Note are: (1) to determine whether defendants have valid claims against the FBI, under Brady v. Maryland6 and its progeny, for failure to disclose evidence on the I-drive; (2) to use the context of the I- drive to point out problems with the current prosecutorial duty to search for and disclose Brady evidence; and (3) to recommend changes that would help solve these problems. Part II provides additional factual background regarding the I-drive and information management at the FBI. Part III explains Brady and its progeny. Part IV discusses litigated I-drive cases, applies Brady and its progeny to the I-drive scenario, and argues that defendants would probably be unable to bring a successful Brady claim based on the FBI's failure to disclose evidence on the I-drive. Part V exposes the reasons why current legal standards are problematic and concludes that these standards are not sufficiently protective of a defendant's right to a fair trial. To ensure protection of this right, Part v. proposes greater law- enforcement responsibility for disclosure, a lower standard of materiality, and continuing oversight of the FBI's compliance with these new standards. Page 1574
The I-drive is only one part of the FBI's inefficient information infrastructure. The FBI's practice of storing information in scattered places has chronically jeopardized the investigative capabilities of the FBI.7 Darwin John, former FBI Chief Information Officer, stated in September 2003 that the FBI was still using multiple networks for operations.8 Prior to John's arrival in July 2002, information officers had permitted regional FBI offices to develop their own information systems.9 The absence of a nationwide network whereby FBI agents could simultaneously access information meant that agents in one region had difficulty acquiring evidence initially obtained in a different region.10
The events of September 11, 2001, focused national attention on the FBI's failure to make information accessible to all FBI agents.11 The National Commission on Terrorist Attacks upon the United States, known as the 9-11 Commission, was particularly critical of the FBI's inability to transmit information on a national scale.12 The 9-11 Commission reported that "the FBI did not have the capability to link the collective knowledge of agents in the field to national priorities."13
The reasons for the FBI's information technology failures prior to September 11 are a matter of intense debate. Former Attorney General John Ashcroft and former FBI Director Louis Freeh blame the FBI's information- technology problems on Congress's failure to provide an adequate budget.14 Page 1575 Some critics, however, have commented that the budget is adequate, but FBI management has not made information infrastructure a priority.15
Since September 11, the FBI has focused on overhauling its information systems.16 The FBI's first attempt at restructuring, a project termed "Trilogy," involved the connection of all 622 FBI offices by Ethernet network.17 One proposed component of Trilogy, Virtual Case File, was to "replace as many as 180 databases that agents are currently using in the field."18 Implementation of Virtual Case File fell far behind schedule.19 As a result of this delay in implementation, House Judiciary Chairman James Sensenbrenner, Jr. requested a General Accounting Office ("GAO") investigation into "whether the [FBI] had competently managed the contractor responsible for delivering the [Virtual Case File]."20
In January 2005, the FBI abandoned Virtual Case File after having spent $104 million on the project.21 The FBI now has plans to replace the failed Virtual Case File system with a project called "Sentinel."22 Sentinel is a case management system that may take "more than four years" to develop.23Although Sentinel may improve the information problems that have plagued the FBI, news reports do not indicate whether Sentinel will eliminate the I-drive.
The FBI is no better at transmitting information to attorneys than to agents within the FBI. For instance, six days prior to the scheduled execution of Oklahoma City bomber Timothy McVeigh, the FBI disclosed to Page 1576 defense attorneys that it had found one thousand previously undisclosed documents relevant to the case.24 Similarly, while the Unabomber investigation was underway, the FBI's forensic lab "repeatedly lost documentary evidence."25
Even when the FBI knows where evidence critical to an investigation is located, history suggests that the FBI may be reluctant to disclose it. The FBI's failure to disclose evidence to the defense in the high-profile Ruby Ridge case culminated in a Boise court "finding the FBI in contempt of court for obstruction of justice."26 Most recently, in September 2004, a federal judge publicly reprimanded the FBI when the government's first jury verdicts convicting terrorists were overturned due to prosecutorial suppression of evidence.27 Due to the FBI's abysmal history of lost and suppressed evidence, the recent revelation of the I-drive is cause for concern.
The FBI only intensified concerns about the contents of the I-drive when it told the press that it was unaware of the existence of the I-drive and "uncertain about the nature or breadth of the documents on the computer space."28 The FBI also claimed ignorance when asked how much information on the I-drive was transferred to official case files.29 This insistence on lack of knowledge is implausible, given that the FBI itself created the I-drive. Regardless, the FBI began an internal investigation, and Page 1577 FBI executive Robert J. Garrity, Jr. stated, "We'll correct whatever we need to, learn from it and make sure it doesn't happen again."30
Recently, the FBI stated "off the record" that "there is nothing underhanded about the way it uses the I-drive."31 FBI officials further claimed that "the vast majority of documents" on the I-drive are transferred into official case files.32
However, when National Public Radio asked about the status of the FBI's internal investigation, the FBI chose not to comment.33
The I-drive has "attract[ed] the attention of the [U.S.] Senate Judiciary Committee," a committee responsible for oversight of the FBI.34 Senator Patrick Leahy, a Vermont Democrat and member of the Committee, released a statement underscoring the importance of information sharing within the FBI: "To know what it knows and to understand what it knows, the bureau needs to have ready access to all the information in its files at any given time."35 Other congressional committees responsible for FBI oversight have not commented on the I-drive.36
Surprisingly, Congress has not expressed concern about its own access to information on the I-drive. If the internal investigation results in finding much evidence, "a review would begin to determine whether [the evidence] Page 1578 should have been turned over to . . . bodies such as the Sept. 11 commission or...
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