years, the United States Marshals Service has served as the instruments of civil authority for all three branches of the U.S. government. It is easily the federal government’s oldest and most versatile law enforcement agency.”
She thus launches into a fifteen-minute speech, without notes, about the glories of the Marshals Service. It’s a stirring rendition, and I’m sure I would be moved to tears if not for the fact that I doze off three or four times during it. I would object as to relevance, but I can use the snooze time.
She finally seems to be getting near the point by saying that the Marshals Service “provides for the security, health, and safety of government witnesses and their immediate dependents, whose lives are in danger as a result of their testimony against drug traffickers, terrorists, organized crime members, and other major criminals.”
It’s a false alarm, because she goes on talking about the tremendous importance of the program, the remarkable people that run it, and the extraordinary success it has had.
Finally she gets to the matter at hand. “Any breach in the secrecy of this program, no matter how small, can imperil the entire operation. It is for that reason that we must regretfully decline to comply with the court’s request.”
“Any documents you would hand over would be under seal,” says Judge Gordon.
“Even to confirm that such documents exist—and I am not saying that they do—would be to breach confidentiality by revealing whether this particular subject was in the program.”
“Mr. Carpenter?”
“Your Honor, no one is disputing the need for secrecy in this program. It is crucial that witnesses be protected. But it is considerably less crucial when the witness is already dead. For that reason, secrecy should in this case give way to the defendant’s right to a fair trial.”
Massengale comes back at me. “A precedent would be established.”
I nod. “Right. The precedent would be that dead witnesses no longer need to be protected from the revelation that they were witnesses. I think our system could survive such a precedent. And if you are able to keep your future witnesses alive, it will never come up again.”
“Our methods and procedures could be compromised,” she says. “If it is known that someone was in our system—even after they are deceased—an enterprising criminal might be able to learn how we go about protecting our people.”
It’s a good point, and I don’t have a great comeback for it, but I give it a shot. “Your method is to provide the witness with an apparently normal background. There is no way to penetrate that unless someone first identifies the person they suspect is in the program, as we did with Stacy Harriman. Additionally, everything you present will be under seal, and the court can protect your methods and procedures.”
Judge Gordon gives Hawpe the chance to intervene, and he speaks for about a minute without saying anything of consequence. Then Massengale and I kick it around for a while more, without breaking much in the way of new ground.
Judge Gordon finally says, “It is the decision of this court to order the U.S. Marshals Service to turn over any and all documents relating to any period of time when the woman known in this trial as Stacy Harriman was under the control of the U.S. Marshals Service in the witness protection program. Because of the urgency created by this ongoing trial, I will suspend my order for forty-eight hours to allow time for appeal.”
It’s a victory for our side, and a surprising one at that. The downside is what Judge Gordon has acknowledged, which is the right of the Marshals Service to appeal up the line, all the way to the Supreme Court. It can be time consuming and could easily exceed the length of the trial.
Massengale’s only response to the ruling is, “May I have a moment, Your Honor?”
Judge Gordon grants her the moment, and Massengale and her group huddle up and talk among themselves. After perhaps five minutes, she turns and addresses the judge.
“Your Honor, in the interests of justice, and with the promise of the court to keep the entire matter under seal, I am declaring to the court that the woman known in this trial as Stacy Harriman was never under the control of the U.S. Marshals Service, in the witness protection program. Therefore, the documents you are requesting do not exist. We will not be appealing your ruling.”
It’s not a bombshell, but close, and it certainly defines the term “hollow victory.” We’ve