(CN) – The FBI must turn over documents sought by a man on death row in Texas who hopes to prove that four Oklahoma drug dealers actually committed the 1983 quadruple homicide to which he has been linked, a divided D.C. Circuit panel ruled.
Lester Bower Jr. was convicted in a state trial of shooting four people to death on Oct. 8, 1983, at a ranch in Sherman, Texas, owned by one of the victims, Bobby Glen Tate.
The victims’ bodies were found in a hangar where Tate stored ultralight aircraft, and Tate’s ultralight was missing. In the days leading up to the murders, one of the other victims, Philip Good, had been helping Tate try to sell his ultralight.
Good’s widow testified that a potential buyer was supposed to pick up Tate’s ultralight on the day of the murders.
Bower, who is a registered gun owner, admitted that he had called Good about buying the aircraft but did not follow through and was not in Sherman on the day of the murders. Though he denied owning a .22-caliber handgun, which investigators pegged as the murder weapon, a search of his home turned up an instruction manual for a Ruger .22-caliber pistol, information on silencers, a form letter from a company that deals primarily in silencer parts, and a record showing Bower had acquired and sold a Ruger RST-6 .22-caliber pistol on February 12, 1982, and then sold it to himself on March 1, 1982.
Sales records proved that, in the weeks before the murder, Bower had ordered eight boxes of bullets for a .22, matching the bullets used in the murder, which are “specialty items” not sold “over the counter” at sporting-goods stores.
“In Bower’s garage, authorities discovered two ultralight tires and rims with the name ‘Tate’ scratched into each rim,” according to the ruling. “They also seized ultralight tubing that later tests revealed bore a fingerprint from one of the murder victims. In addition, authorities discovered a pair of rubber boots and a blue nylon bag, both of which were stained with blood.
Bower eventually admitted to meeting with Tate and Good on the day of the murders, and said he left with the ultralight, but still claims he did not commit the murders.
“Furthermore, and central to this case, two witnesses have come forward since Bower’s criminal trial and provided sworn statements indicating that the murders were committed not by Bower, but instead by four Oklahoma drug dealers: [now deceased] Brett (“Bear”) Leckie, Chestley (“Ches”) Galen Gordon, Lynn Langford, and Robert (“Rocky”) T. Ford,” according to the ruling.
Leckie’s widow and Langford’s ex-girlfriend are the two witnesses.
Bower in turn filed request under the Freedom of Information Act against the FBI and the Executive Office for U.S. Attorneys in January 2008, demanding information on the FBI investigation of the case. Though Texas prosecuted the case, the FBI jointly investigated and an assistant U.S. attorney helped prosecute.
Claiming an exemption that allows agencies to withhold law-enforcement records to protect personal privacy, the FBI’s response neither confirmed nor denied the existence of information on the three living suspects: Gordon, Langford and Ford.
A federal judge approved the answer, which is known as a Glomar response after the Hughes Glomar Explorer, a ship used in a classified CIA project to raise a sunken Soviet submarine from the Pacific Ocean.
On Tuesday, however, the D.C. Circuit said Bower’s FOIA request can proceed under the Supreme Court’s 2004 decision in National Archives & Records Administration v. Favish.
“The public has an interest in knowing whether the federal government is withholding information that could corroborate a death-row inmate’s claim of innocence, and … that interest outweighs the three men’s privacy interest in having the FBI not disclose whether it possesses any information linking them to the murders,” Judge David Tatel wrote for the majority.
Tatel continued that the FBI failed to disclose information that might help Bower in the past and therefore suggests that “the FBI ‘might’ have other potentially exculpatory information in its files.”
The majority emphasized that the FBI need not disclose whether it has information about the three men that is unrelated to the Sherman investigation.
“The public’s interest is in knowing whether the FBI’s files contain information that could corroborate Bower’s claim of innocence, not in knowing all information the FBI may have,” Tatel wrote.
Judge Brett Kavanaugh dissented with the majority opinion, citing what he called “FOIA’s critical protection for personal privacy,””The Supreme Court and this Court have held that FOIA ordinarily is not an appropriate tool to obtain information from law enforcement files relating to a criminal prosecution when disclosure would infringe the privacy interests of third parties,” Kavanaugh wrote. “That settled principle controls this case.”