I write this with the following assumptions:
1. The defendant investigator has never been convicted of any integrity crime or crime of moral turpitude
2. The investigator NEVER ghost wrote or deliberately submitted false information. False information may be submitted because of honest mistakes as a result of poor record keeping or simple oversight
3. The investigator can recollect some details regarding the subject of the investigation, even in the absence of notes or historic records.
4. The Governmentâs allegations are false.
It seems fundamentally unfair to me that the Federal government is prosecuting investigators based on allegations of falsifying records several years after the maximum number of years that records of investigation are required to be kept. Assuming that Government has it wrong, how can a defendant defend him or herself when they are required by law to submit ALL notes. And when the Government may destroy those notes 3 years after they have received them?
In the case of Mr. Davila, he finds himself facing numerous charges and a demand to plead guilty. It is clear that he can rebut much of the Governmentâs allegations with travel and telephone records. That defense could be perfected if he were allowed to use his notes which he no longer has access to.
As I consider how to defend these charges, I imagine standing in front of the jury and explaining the dilemma of a clearly good person who is fighting the power of the Government with his hands tied. A jury will not like the unfair rules. A jury will believe a defendant with a history of honorable service to the nation when he gets on the stand and tries to recollect his moves, explains that he created notes that could assist him in recollecting but canât because the government took them and destroyed them.
What this means is that a defendant will almost always have to take the stand to explain. It also means and I firmly believe that a defendant who lies to a jury does so at his or her own peril because jurors are pretty good at detecting the truth.
In such a trial I would want to use an experienced investigator as an expert to discuss the restrictions imposed by OPM as compared to other agencies. The expert would also talk to about how investigations are conducted and why mistakes are sometimes made.
I look forward to your thoughts and ideas
Haytham Faraj, Esq.
PUCKETT & FARAJ, PC
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