FBI Withholding Exculpatory Evidence About Butina Part of Agency’s ‘Cultivated’ Practice

© AP PhotoIn this photo taken on Sunday, April 21, 2013, Maria Butina, leader of a pro-gun organization in Russia, speaks to a crowd during a rally in support of legalizing the possession of handguns in Moscow, Russia
In this photo taken on Sunday, April 21, 2013, Maria Butina, leader of a pro-gun organization in Russia, speaks to a crowd during a rally in support of legalizing the possession of handguns in Moscow, Russia - Sputnik International
An FBI informant assigned to spy on Russian national Maria Butina had a change of heart last week, telling Butina’s lawyer about the spying and that he’d told the FBI Butina wasn’t a Russian agent. However, the bureau never provided that evidence during the trial, which it was legally obliged to do.

Patrick Byrne, the CEO of Overstock.com, told lawyer Robert Driscoll, who represented the 30-year-old Russian national during her trial this past winter for failing to register with the US government as a foreign agent, that he’d been assigned by the FBI to initiate a romantic relationship with Butina. However, during the course of his spying on her, he decided she wasn’t up to anything suspicious, a judgment he relayed to his FBI handlers.

Driscoll says he never received that evidence, and wrote a letter of protestation to US Justice Department bigwigs last week alleging malpractice.

Driscoll wrote that Byrne had told him that “some of the details he provided the government regarding Maria in response was exculpatory - that is, he reported to the government that Maria’s behavior and interaction with him was inconsistent with her being a foreign agent and more likely an idealist and age-appropriate peace activist.”

Driscoll protested to Justice Department Inspector General Michael Horowitz and US Attorney John Durham that when asked, federal prosecutors had “denied the existence of any such Brady material.” According to the US Supreme Court’s ruling in Brady v. Maryland, prosecutors are legally obliged to provide the defense with evidence favorable to the defendant.

Butina was subsequently convicted after pleading guilty to conspiracy as part of a plea deal and  will be sitting in prison until October, after which she’ll be deported back to Russia. The Russian government has maintained her innocence and protested both the conditions of her detention and her trial.

Colleen Rowley, a former FBI special agent who in 2002 was named Time Magazine person of the year along with two other whistleblowers, told Radio Sputnik’s Loud and Clear Wednesday that hiding exculpatory evidence was a practice as old as the FBI itself.


Rowley said the FBI has “cultivated certain practices” since it was led by J. Edgar Hoover, who died in 1972, “that have led to debacles that have become public,” such as its use of mob boss Whitey Bulger as an informant against a rival crime family at the expense of the bureau largely overlooking Bulger’s own criminal operations.

“In theory, you don’t want to have an informant who is more able to coerce someone into committing a crime,” Rowley told hosts Brian Becker and John Kiriakou. “This case has a little touch of that,” she said, because Bryne was 57 and Butina in her 20s. “And using sex, of course, this guy didn’t just develop the relationship, he was told to institute a romantic sex relationship. So a lot of people would say that that’s going to overpower the will, and you can get - you know, a powerful person can kind of entrap people into saying things, etc.”

The irony is that throughout Butina’s trial, it was she who was slandered by the media and the prosecution as a honeypot who traded sex for political connections, when it was Byrne, at the behest of the FBI, who actually initiated the relationship with her in the interest of extracting useful information.

“The other practice that goes back to Hoover is that the FBI was never required to have any tape recording or video evidence - even of confessions. And this is great for a zealous prosecutors and for the investigation because, in this case, this informant who told the FBI, ‘Oh, you know what, she’s not really a spy, she’s just a graduate student seeking - you know, she’s trying to lobby for gun rights or whatever,’ whatever he told them, we don’t even know if that was transferred into written form.”

“It’s possible, if you had an agent with some integrity, they would’ve included that in their report. But it’s also possible, because nothing is tape-recorded and there’s no accountability, really, there’s no way of ever showing this, that an agent will not write things up in a way that helps the prosecution. And if something is exculpatory - for instance, in an interview - you know what? It may not get into the written transcription that the agent would do.”

Rowley said that even with “Brady material,” the FBI will often argue they “have less broad discovery than most state judicial authorities, because in the federal system, it has to be relevant. So, many times they will say that how a case got initiated is not relevant to what we later are able to prove and get evidence of.”

“They construe their responsibility to provide Brady material … in as narrow a fashion as they can, and unless the other side finds out about it, nobody is the wiser,” Rowley said.

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