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WASHINGTON (AP) ? In an oversight that could affect cases nationwide, the FBI hasn't routinely searched a special computer space where agents store investigative documents to see whether the materials should be sent to defense lawyers, Congress or special investigative bodies. The existence of the unsearched "I-drive" computer files, brought to the attention of The Associated Press by concerned FBI agents, could give lawyers an avenue to reopen numerous cases to determine whether documents that could have aided the defense of criminal defendants were withheld.
The FBI is uncertain about the nature or breadth of the documents on the computer space and has asked its internal investigation unit, its inspection division, to determine how many documents on I-drives in FBI offices across the country did not make it into official case files, officials said Monday.
If a large number are found, a review would begin to determine whether they should have been turned over to defense lawyers, bodies like the Sept. 11 commission or Congress, officials said. FBI supervisors said they were unaware of the problem until it was brought to their attention by AP.
"The only official records system the FBI has is our paper records. At no time did we ever ask anyone to look at the I-drives," said Robert J. Garrity Jr., the FBI deputy assistant director in charge of records management.
"We'll correct whatever we need to, learn from it and make sure it doesn't happen again," he added.
Sen. Patrick Leahy, the top Democrat on the Senate Judiciary Committee, said Tuesday that concerns about FBI document production were raised during Director Robert Mueller's confirmation hearings before senators in 2001 and "there has been too little progress in fixing this problem."
"This is the information age. With the computer technology that is available, the FBI should be getting better and more efficient at this, and it is not," said Leahy, D-Vt. "This is a core investigational, prosecutorial and legal responsibility, and getting this problem fixed needs to be a top priority."
Garrity said the I-drive was created in 1996 and is used by agents to upload investigative documents like interview reports, investigative inserts and teletypes so their supervisors can approve putting them into the FBI's official case files, which are still in paper format.
He acknowledged that those documents that do not get into the FBI's official case files or its automated computer case system would not be searched for materials that should be turned over to defense lawyers or Congress.
Under a landmark Supreme Court case known as Brady v. Maryland, prosecutors and police are required to disclose all materials they possess that might help defense lawyers prove the innocence of clients.
Prosecutors operate under an honor system, and numerous times in recent years there have been prominent cases in which relevant or exculpatory documents haven't been produced, touching off legal battles.
Lawrence Barcella, a prominent Washington defense attorney and former federal prosecutor, said the discovery of the FBI's unsearched computer storage space could affect current cases in which guilt or innocence is still at issue and past cases where questions of the fairness of sentences or credibility of witnesses might be impacted.
"Under criminal case law, the failure to disclose may well result in a defendant being denied a fair trial. So it doesn't matter if it was negligence or willful, if potentially exculpatory information was not produced," Barcella said.
Barcella said FBI agents have complained for years that they have inadequate computer systems, and that remains a problem despite recent improvements under FBI Director Robert Mueller.
The FBI acknowledged last week that some documents unearthed by AP for a story Wednesday about the Oklahoma City bombing were inexplicably never turned over to its own investigators or to lawyers for Timothy McVeigh, who was executed for the April 1995 attack.
The documents included at least one teletype that clearly mentioned McVeigh's name, yet were never produced to defense lawyers. And in 2001, FBI officials belatedly found about 4,000 pages of relevant documents that also never were turned over, prompting a one-month delay in McVeigh's execution.
The retired chief of the FBI's Oklahoma City investigation, Dan Defenbaugh, said he learned of the existence of the I-drive during the 2001 controversy and was surprised the FBI wasn't searching it for materials required to be turned over to defense lawyers.
"I did not know prior to 2001 that agents were storing documents on this I-drive and that it was not routinely being searched," Defenbaugh said. "There are a number of executives who I have talked to since then that were as dumbfounded as myself."
Defenbaugh said the failure to ascertain, search and recover documents from computer hard drives should be the responsibility of the FBI computer specialists, not the investigating agents.
"That's not our job. That is why we have computer specialists," he said.
Meanwhile, FBI officials are pushing implementation of their next-generation case management system which will give the bureau its first fully computerized document system as early as this summer.
The FBI is working with the National Archives and Records Administration to ensure the rollout is smooth and meets all the requirements of government record keeping.
When the system is fully implemented, FBI agents will be able to search all investigative records by computer to ensure none are missed for production to lawyers and Congress, officials said.
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