OpenCDA

March 25, 2014

DBSI – A New Wrinkle?

Filed under: Probable Cause — Tags: — Bill @ 7:08 am

DBSIThis morning’s Idaho Statesman article headlined Hearing after FBI agent’s death raises questions about her veracity during DBSI trial by John Sowell further complicates the already complicated federal trial going on in Boise.

As we reported in our March 23 post entitled DBSI – Ever Hear of It?, after testifying on Tuesday and Wednesday last week, FBI Special Agent Rebekah Morse was found dead in her Boise home on Thursday morning.  By Thursday night, within a period of about 16 hours, the investigation of her death resulted in the Ada County coroner announcing that she had died of a self-inflicted gunshot  to her head.

In his Monday morning hearing, federal district court Judge B. Lynn Winmill said that afternoon he would review the contents of the alleged text messages found on Morse’s phone and discuss the contents with the attorneys on Tuesday morning before bringing in the jury.

It is likely that the contents of any of the text messages on Morse’s phone will help Judge Winmill decide how to best proceed with the trial.

For readers who have PACER accounts, the case number is Case 1:13-cr-00091-BLW.  This will give you access to several of the unsealed filings and court documents.

And still no timely reporting of this major Idaho story from either The Coeur d’Alene Press or The Spokesman-Review.

ADDENDUM on 03-25-2014 at 11:36 AM:  From the Idaho Statesman:  Update:  Judge concludes deceased FBI agent was texting during testimony

ADDENDUM on 03-26-2014 at 03:25 AMHere is a link to Judge Winmill’s Memorandum Decision and Order filed 03-25-2014 concerning the assertations that FBI SA Morse had been texting during her testimony and had lied about it to the Court.  The heavily redacted portions of the FBI’s FD-302 form presumably pertain to matters of her death investigation.  This is one of the “newly unsealed court documents” Idaho Statesman reporter John Sowell refers to in his article in today’s paper headlined FBI agent’s court texts unrelated to DBSI.

8 Comments

  1. This is akin to the ‘glove that doesn’t fit’ tactic. Somebody has to die to get a phone?

    Nice that so many of us fronted and paid for so many businesses. According to the Boise Weekly back in 2010, “Among the hundreds of commercial properties managed by DBSI were the Plantation Shopping Center, the Northgate Shopping Center and Broadway Plaza, all in Boise.”

    Comment by Stebbijo — March 25, 2014 @ 7:33 am

  2. Stebbijo,

    Thank you for helping make a point I hinted at with my link to johnschapman.com in my first post on March 23.

    Although there may have been no DBSI properties in our immediate area, it is entirely possible that there may have been local broker-dealers who encouraged their local clients to invest in DBSI.

    Comment by Bill — March 25, 2014 @ 8:23 am

  3. More tantalizing than a lost airplane–yet nothing from the skew? Go figure. But gotta love the sealed justice system. Makes for an already made for TV movie (big screen already did Wag the Dog).

    Comment by Old Dog — March 25, 2014 @ 2:13 pm

  4. Old Dog,

    I really can’t say that I’m surprised. For the trial to get the kind of coverage that would be complete, understandable, informative and interesting to everyday readers, it would take a newspaper with at least two full-time reporters dedicated to the case. They would need to be able to comprehend the complex material and attend all hearings and court sessions. They and their editor would have to skillfully collate and then summarize highly technical and complex testimony, and they would have to be able to recognize when something simply doesn’t sound right. I’d hold up the recent example of the Los Angeles Times’ coverage of the City of Bell corruption scandal and the more distant Washington Post’s coverage of the Watergate burglary and coverup as examples of good coverage.

    I believe John Sowell at the Idaho Statesman is trying his best, but I don’t see any other Idaho papers (including The Spokesman-Review) or the AP even making an effort.

    Comment by Bill — March 25, 2014 @ 2:33 pm

  5. So, a juror goes to the judge and tells him he see the SA texting? Then, the judge inquires and takes her phone and locks in a safe, then she is found dead – then they say nothing was on the phone but text messages to her husband? This can’t be real, it just can’t – BUT, it is Idaho.

    I looked at the account on Pacer. I do that when something interests me. I do not fully understand all of it because I am not an attorney, but a great deal of it is sealed anyway. The last paper filed today was the GOVERNMENT’S POSITION REGARDING FURTHER INSTRUCTING THE JURY which was fairly interesting because now it appears that the jury might possibly become/is tainted. Parts of this document:

    “Agent Morse was never cross-examined regarding the transcript of the Court’s
    questioning or about the text messages. Here, as in Hinkson, the extrinsic evidence sought to be
    introduced — the transcript of the Court’s questioning of Agent Morse and the phone records — are
    “facially inconclusive” about whether Agent Morse lied about anything. Id. at 1256. Both of
    these pieces of extrinsic evidence would be offered for no other purpose than to attack Agent
    Morse’s credibility regarding a specific instance of alleged untruthfulness, rather than her
    testimony about disputed facts relevant to the charged crimes.”

    “The Government is mindful of the distinction the Court has drawn between an FBI Agent
    and a civilian witness. The fact remains that the evidentiary rules make no distinction, however.
    Moreover, the Government has been unable to find any precedent that recognizes such a
    distinction.”

    “Because everything that the Court could comment on is extrinsic evidence, the
    Court must take great care in discussing its actions at all, since the very occurrence of “inquiries”
    could be interpreted by the jurors to mean that the Court believes the prosecution has committed
    misconduct with respect to the DBSI investigation or prosecution. This is particularly true in light
    of the Court’s earlier instruction to the jury regarding the occurrence of a “personal tragedy” and
    the exposure of some jurors to news media. At least some of the jurors who have heard reference
    to a death, suicide, or the lead FBI investigator may be unable to separate what they have heard
    outside the courtroom from the evidence, leading them to speculate as to the connection between
    Agent Morse’s death and the case. This, however, is precisely the sort of speculation in which the
    jurors should not engage.”

    Comment by Stebbijo — March 25, 2014 @ 6:37 pm

  6. Stebbijo,

    Unfortunately we don’t have access to the SA’s phone logs, so we can’t prepare a precise timeline of when she was on the witness stand versus when she responded to an incoming text message or when she initiated an outgoing text message.

    I suspect that if the accounts of her testimony are accurate, she may well have forgotten to turn off her cellphone, only to have it vibrate to indicate an incoming message when she was on the stand. At that point it would have been wise for her to apologize to the Court, ask the Court’s permission to turn off the cell phone, and accept the Court’s admonition with appropriate humility. If she instead received an incoming call while the attorneys were at sidebar with the Judge, she may have fumbled to try and turn off the phone and avoid the Court’s admonition. No one enjoys being chewed out by a Judge, but contrition counteracts contempt.

    Again, we don’t know, because we weren’t there, nor do we have an authenticated timeline that shows the exact sequence of events.

    There’s a lot more we don’t know. The DBSI case would probably qualify as a “career case,” a career-maker or -breaker. We don’t know if she was the case agent (it sounds as if she might have been) or not. In short, we don’t know how much pressure she might have been under and from whom to deliver.

    If you look back in PACER at the preceding motion by the defense attorneys, you get a real picture of the questions that needed to be asked by the Court (though not necessarily in open court) to evaluate the effect of SA Morse’s conduct and to arrive at some way of procedurally proceeding with the trial.

    Comment by Bill — March 25, 2014 @ 7:28 pm

  7. Here is another followup story today … that can be picked apart, from the IS. I don’t believe any of it.

    Comment by Stebbijo — March 26, 2014 @ 7:36 am

  8. Try again.

    Comment by Stebbijo — March 26, 2014 @ 7:37 am

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