An attorney for a Florida man accused of robbing armored bank cars in 2010 filed a motion this week demanding that the government turn over phone location records theoretically stored in the National Security Agency's (NSA) massive archives, which he believes could exonerate his client on at least one of the charges against him.
In the trial of Terrance Brown, this is a twist not even his attorneys could have seen coming, all predicated upon NSA whistleblower Edward Snowden's explosive revelations.
Brown's attorney Barry Pollack originally sought records from mobile phone carrier MetroPCS after government prosecutors alleged that cell phone metadata shows his client was near the scenes of each robbery when they took place. However, a full month of metadata was missing from the MetroPCS records -- metadata that could prove Brown was not at the scene of at least one of the robberies, according to The South Florida Sun-Sentinel -- so Pollack got creative.
Attorneys who spoke to law publication Main Justice said this case could be just the tip of the iceberg now that the NSA's giant secret is out.
"The records for the two telephone numbers are in the government's possession," Pollack wrote in a motion filed Sunday, embedded below. "The NSA operates under the authority of the United States Department of Defense, an arm of the executive branch of government. The FISA court order that has been widely published was issued pursuant to an FBI affidavit. The FBI is a member of this prosecution team, as is the Attorney General's Office, which in addition to passing upon the applicability of the death penalty in this matter, also authorized the government to confer immunity on [a separate defendant]."
The judge, Robin S. Rosenbaum of the U.S. District Court for the Southern District of Florida, did not disagree. In an order issued Monday she compelled the government to respond to Brown's attorney, which could require Attorney General Eric Holder to weigh in on the case and whether releasing the phone records would somehow damage national security. The prosecutors asked for an additional two weeks to prepare a response, which Rosenbaum allowed.
Of course, there are a few other legal wrinkles apart from state's secrets that could stymie Brown's defense, like the FISA court rule that requires someone seeking to review national security information first prove they were "aggrieved," usually by showing they were arrested on the basis of said information, which would be impossible to prove in this case.
On the other hand, the so-called "Brady rule" compels prosecutors to turn over any information in the government's possession that would tend to be favorable to the defendant. A failure to do so has caused numerous criminal cases to collapse, including the prosecution of former Sen. Ted Stevens (R-AK), now deceased, who walked away scot-free after a judge rebuked prosecutors for not following the Brady rule. The prosecutor in that case later committed suicide.
Read the full filing below.
["Stock Photo: Man Shushing Woman On Telephone" on Shutterstock.]