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Friday, May 13, 2016

Should Unindicted Co-Conspirators Be Identified?

Is it fair to publicly identify unindicted co-conspirators in a criminal investigation?

The attorney for one such person involved in the Bridgegate - George Washington Bridge lane closing federal investigation argues it is not fair, because such identification deprives the identified co-conspirator of due process and brands him (or her) as a potential criminal suspect (or felon).

There are several issues here.

First, can the unindicted co-conspirator be identified? It is one thing if the authorities use opaque descriptions like "CC-1." (The CC stands for co-conspirator.) It is quite another if the authorities use a pretty defined term like "Public Official 1," which term was used once to refer to a certain former state governor and which led in short order to press suspicions and a confirmation from said governor that, yes, he was the person referred to in the criminal information (the charging document issued when a defendant enters a guilty plea to avoid a formal indictment). There are actually formal guidelines for the identification of suspects who have not been charged and the authorities generally try (or at least the guidelines give the impression of the effort) to avoid impugning the reputation of uncharged individuals.

That's because of the second issue. If the identifiable unindicted co-conspirator is never charged but only suspected, his reputation may be seriously harmed.

Most critically, the third issue: The suspect, who is "outed" as a suspect, may never be charged. The good news is avoiding an indictment and surely the greater reputational damage (assuming the suspect is in fact innocent and ultimately exonerated or cleared by a judge or jury) of the indictment, perp walk and pre-trial drama. 

The bad news? 

The suspect co-conspirator never "gets his day in court" to answer, oppose and refute the suspicions. 

The suspect never gets to see (or debunk) the purported evidence against him. 

The suspect never gets to confront his witnesses.

The result?

The suspect gets outed as a suspect, suffers the reputational harm (or at least the prospect of it), and is denied any opportunity at rehabilitating his reputation or establishing his actual innocence.

It's like calling the batter out on strikes, without even letting the batter get to the plate.

Is this fair? What do you think?

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