FBI and Investigatorial Misconduct

One of the weak points of US criminal law is the lack of penalties for prosecutorial misconduct. What we have here is investigatorial misconduct. Law works best when forces are balanced: cops who search illegally risk getting their evidence thrown out, and so on. But where’s the pushback against an investigation with no end?

This movie shows there isn’t any. I didn’t realize that the feds basically never had any real evidence against Jewell. Zip. They had suspicions based on a profile. That’s fine: suspicions should be investigated, absolutely. (That’s what Jewell himself did with the suspect package.) But when the investigation turns up nothing, what then? If you’re the FBI, you leak your suspicions to the press and then keep asking the same suspect the same questions over and over, because you “know” your suspect is “guilty as hell.” That’s what FBI investigator Shaw “knows” after 88 days of fruitless hammering of Jewell. He broke lawyer Bryant’s first admonition to those entering law enforcement: Don’t become an asshole.

In American law we have the right of habeus corpus, the right “to have the body”: demand the government release a jailed person if they cannot show cause to hold him. Perhaps we need a new right, “habeus caseus” — forcing the government to state that they have a case, or else publicly declare that the person is not a suspect. That declaration happens in this case, but only because it became a PR nightmare for the feds. They weren’t required to make one. Jewell could have remained under suspicion for years, as often happens (many such cases were documented by 60 Minutes years ago). As this movie shows, there are real costs to being under such indefinite suspicion — and not just for the subject.