Double-Murder Canary Records Face Exposure

(CN) - The Justice Department must confirm or deny the existence of a tape that a prisoner believes will exonerate him of double-murder charges, a federal judge ruled.

Ronnie Middleton and Sabrina Bradley were shot to death in August 1998 in what authorities believed was part of the bloody turf war between the 1-5 Mob and the Congress Park Crew, rival Washington, D.C., gangs.

Jurors convicted David Wilson, an alleged member of the Congress Park Crew, of the double-homicide on the theory that he aided and abetted the crime by driving the associate who opened fire.

Both the shooter and another alleged co-conspirator had died by the time of Wilson's 2007 trial.

Maintaining his innocence, Wilson filed a Freedom of Information Act request last year asking for a recorded conversation between the shooter and an informant named Bobby Capies.

Wilson believes that the shooter, Antonio Roberson, "names his accomplices on the tape and that the recording will prove that he was not one of them," according to the ruling.

Citing Capies' and Roberson's privacy under FOIA Exemption 7, however, the Justice Department refused to either confirm or deny the existence of responsive records.

U.S. District Judge James Boasberg took the government to task on Wednesday for issuing the Glomar response, named for the Hughes Glomar Explorer, a ship used in a classified CIA project to raise a sunken Soviet submarine from the Pacific Ocean.

"DOJ has identified no privacy interest adequate to justify its Glomar response," Boasberg wrote. "Accordingly, no balancing [between privacy and public interest] is necessary. DOJ must - at minimum - confirm or deny whether the record Wilson is seeking exists. If it does, DOJ must either turn it over or explain the reasoning behind its withholding."

Wilson believes two documents disclosed after his trial are proof that the tape exists: a 1999 interview with Capies wherein the informant said he talked to Roberson on the phone the day after the murders, and a document that "describes a recording made by the government and a 'confidential source,'" believed to be Capies.

The government cited three privacy interests for its Glomar response related to FOIA Exemption 7, which prevents the disclosure of law-enforcement records that could constitute an invasion of personal privacy.

Those interests are Capies' privacy, Roberson's privacy and Capies' "interest in not being associated with the particular recording identified by Wilson in his FOIA request," according to the ruling.

Since the Justice Department had confirmed Capies' status as an informant at Wilson's trial, however, Judge Boasberg said the existence of the tape must be disclosed, though not necessarily released.

"Capies may indeed have a privacy interest in protecting the content of documents related to his cooperation here," Boasberg wrote. "As a confirmed government informant in Wilson's case, however, he does not have a privacy interest in concealing this status or the existence of Wilson-related documents. FOIA is very specific on this point."

Roberson's privacy meanwhile is not a concern in this case because the conversation between him and the confidential source has already been acknowledged, the court found. His death in 2003 also reinforces that there is no remaining Roberson privacy interest for hiding the tape's existence, according to the 14-page ruling.

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