Tuesday, January 3, 2012



Note: why of course not. No spin here folks.

Sealing of Brian Terry murder case not likely part of cover-up,
experts say (updated)
Tim Steller, Arizona Daily Star
| Posted: Tuesday, January 3, 2012 4:13 pm |

This undated file photo provided by U.S. Customs and Border
Protection shows U.S. Border Patrol agent Brian A. Terry. The parents
of Terry, killed Dec. 14 northwest of Nogales, argued in a Aug. 1
court filing that they should be considered formal victims of Jaime
Avila. He is accused of buying AK-47s and other guns from stores in
the Phoenix area on behalf of organized crime groups in Mexico.

* Related: Indictment in Brian Terry killing

(Updated to included comment from former federal prosecutor John Leader)

The sealing of the case against the man suspected of murdering Brian
Terry unleashed last fall a new round of railing about the Justice
Department's handling of Operation Fast and Furious.

In fact, in a story Sunday, I included the sealing of the case as one
of five Justice Department acts that contributed to the perception of
a cover-up in Operation Fast and Furious.

But that doesn't mean the sealing really was intended to cover up
Justice misdeeds, just that some people took it that way. A veteran
Tucson defense attorney and two former federal prosecutors in the
Tucson office agreed, when I asked each separately Tuesday, that the
sealing was more likely due to events in the case than an attempt at
cover up.

(To recap for those not up-to-speed: when Terry, a U.S. Border Patrol
agent, was shot to death on Dec. 14 2010, one man was arrested at the
scene. He was charged with second-degree murder in the case, but told
investigators there were a total of five people in the crew that
fired at Terry and his fellow agents. The U.S. Attorney's Office
released its indictment in the case in May, and it's attached, but
later the case was sealed.)

Perhaps the most typical reason for sealing cases is to keep fugitive
defendants from knowing about the case, agreed former federal
prosecutors Sean Chapman and John Leader, and longtime federal-court
defense practitioner Walter Nash. None of them have a role in the
case against Terry's alleged killers.

"There are all sorts of different reasons to seal a case," Chapman
said. "The most common one is that there can be outstanding
defendants that haven't been arrested yet. The idea is that you don't
want to tip them off."

In the indictment, it appeared two names were blacked out, though the
names could be nicknames or other identifiers.

Nash said cases are being sealed increasingly frequently, though it's
still not routine. (I tried to find out the number of cases that were
being sealed back when I covered federal court around 2000, but I was
told, of course, that number was sealed!)

"When you seal the case, it raises a big red flag," Nash said. "When
I see a plea agreement sealed, I see 'cooperator.' "

Leader agreed that often cases are sealed to protect somebody who is
cooperating in an investigation. Even in a case like this in which
the defendant's name is known, that could come into play, Leader said.

"Sometimes, even if a guy's identity is known, the fact of his
cooperation may not be," he said.

Nash noted that the parties in the case can still follow the
pleadings in a case that has been sealed. But theoretically at least,
the fugitives are in the dark.

Another possible explanation for the sealing of the case is that it
had something to do with the transfer of the case from the federal
prosecutor's office in Tucson to the one in San Diego, Chapman said.

"I suspect there were some (office) politics involved," he said.

In any case, it's unlikely the case will be sealed forever.
Eventually, in a case this prominent, we'll know what's in that file,
and then we should have a very good idea why it was sealed.

Read more: http://azstarnet.com/news/blogs/senor-reporter/sealing-of-

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