The Stingray Lies, and the Judges Who Love them
Aug. 25, 2015 (Mimesis Law) — For those of us with our ear to the ground on matters criminal law-ish, the revelation of the Stingray, technically IMSI catchers, was shocking. It was one of the best kept secrets of law enforcement, studiously unmentioned and miraculously unknown. Until a few years ago.
A fish? Not exactly:
Stingray cell site simulator devices (also known as IMSI catchers) mimic a real cell phone tower and help provide the location of a certain mobile phone. As we’ve written, these devices have been super popular with police departments, who often receive them from the federal government with strict non-disclosure agreements.
When word first spread about their existence, it was in the context of big crime and terrorism. This wasn’t the sort of pedestrian investigative tool that was worth pulling out for just anybody, but only the big cases. Rarely used.
But when it was, they didn’t tell the defense, and they didn’t tell the judge. Because if they did, then it wouldn’t be a secret and effective tool to save the children. What good would that be?
The official explanation, once it became known that Stingrays were used, but the disclosure was of a fabricated source to conceal their existence and application, was the non-disclosure agreements. They trust you, judge, but they are sworn to secrecy. Because law enforcement has decided that NDAs trump judges. Bet you weren’t aware of that.
Brad Heath at USA Today, however, has screwed up this entire narrative.
In one case after another, USA TODAY found police in Baltimore and other cities used the phone tracker, commonly known as a stingray, to locate the perpetrators of routine street crimes and frequently concealed that fact from the suspects, their lawyers and even judges. In the process, they quietly transformed a form of surveillance billed as a tool to hunt terrorists and kidnappers into a staple of everyday policing.
And the logs unearthed show that this has been going on far longer than anyone knew. Heck, far longer than anyone outside of law enforcement knew Stingrays existed.
Defense attorneys assigned to many of those cases said they did not know a stingray had been used until USA TODAY contacted them, even though state law requires that they be told about electronic surveillance.
It’s kinda hard to frame a defense when you’ve been denied access to what was done. And then there’s that law thing.
Prosecutors said they, too, are sometimes left in the dark. “When our prosecutors are made aware that a detective used a cell-site stimulator, it is disclosed; however we rely upon the Police Department to provide us with that information,” said Tammy Brown, a spokeswoman for the Baltimore’s State’s Attorney. “We are currently working with the Police Department to improve upon the process to better obtain this information in order to comply with the law.”
Oh my. So cops deem prosecutors so untrustworthy as to not be given the truth? Or is it just that there is no need for them to know, so they can sell the lie with a straight face and no twinge of discomfort at their flagrant ethical lapse of lying to the court?
But what’s so hard about disclosing the truth that it requires the State’s Attorney to “currently work with the Police Department to improve upon the process to better obtain this information in order to comply with the law”? Just tell the truth. Send out a memo to the cops: “Tell the truth.” Problem solved, right?
But old habits are hard to break. And they would probably lie about not receiving the memo anyway.
Yet, one player in the system remains underdeveloped, given these new revelations. Who, you ask? Who could that possibly be?
So how do you feel about the fact, not speculation but fact, that you’ve been played all these years? You operate as the neutral arbiter of law, believing without question that the functionaries of the state are, with rare exceptions, honest, truthful, the good guys.
And they’ve been lying to your face all along. Lying liars lying to you, Judge.
Because they don’t trust you to keep their secrets? Maybe they aren’t sure you’re enough of a law enforcement team player that you’ll realize how critical it is to their difficult job of protecting the public, and might, in a fit of integrity, spill the beans?
Maybe they think the system is just a game, with the cops fighting the war on crime and the whole courtroom, due process thing a dog and pony show to keep the clueless public pacified?
And to keep you pacified too, as they look at you with their puppy dog faces and swear that they just happened to find out this stuff. Hey, stercus accidit, you know.
When it was earlier revealed that Stingray existed, but that it was reserved for the terrorists, to stop that dirty bomb from killing millions, maybe you were inclined to be a bit more understanding of their need for secrecy. After all, terrorists. Very scary. Can’t let that happen.
But now that you know Stingrays are being used for jaywalking, consider the emanations and penumbras. How many banal street crimes were “solved” by the routine use of this device whose very existence was kept secret. From you. You!
And how many times have the cops left the courthouse chuckling to themselves about how they fooled another robed fool who believed them?
Are you good with this? Do you love law enforcement so much that you’re willing to turn away from the lies they’ve been feeding your for almost a decade? Do your robe, your bench, a system to which you’ve dedicated your career, matter enough to demand honesty? Even from the cops?
Has it occurred to you yet that those bad dudes you sent to prison forever, or maybe to a one-way trip to the death chamber, got there because law enforcement didn’t think what you did, what we do, is real enough to be worthy of the truth?
Are you happy now? Are you going to do anything about it?