‘Other Guy’ Theory Won’t Win FOIA Production

     WASHINGTON (CN) – A death row lawyer who says police got the wrong guy cannot access law enforcement records on the supposed true culprit, a federal judge ruled.
     Blythe Taplin, a lawyer with the nonprofit Capital Appeals Project in New Orleans, had asked the FBI on behalf of her client Rogers Lacaze to release such documents.
     Lacaze has been awaiting the death penalty for 18 years on a triple murder that occurred at the Kim Anh Vietnamese Restaurant in 199.
     Jurors found that Lacaze had been an accomplice to New Orleans Police Officer Antoinette Frank in the fatal shooting of 25-year-old New Orleans Police Officer Ronald Williams, 24-year-old Ha Vu and 17-year-old Cuong Vu.
     Frank was also convicted and sentenced to death for the murders.
     Lacaze’s lawyer claims, however, that she has uncovered evidence in postconviction proceedings that identify Frank’s true accomplice – her brother, Adam Frank Jr.
     Taplin says witnesses heard Adam Frank Jr. brag about killing a New Orleans police officer, and that he was found in possession of a 9 mm Beretta – the same caliber, make and model weapon used in the triple-murder.
     Antoinette also once threatened Officer Williams after he ejected Adam from the restaurant, Taplin says.
     The lawyer filed suit after the FBI refused to confirm or deny, when faced with her request under the Freedom of Information Act, whether it had any documents on Adam.
     Such answers are known as a Glomar responses, named after the Hughes Glomar Explorer, a ship used in a classified CIA project to raise a sunken Soviet submarine from the Pacific Ocean.
     In its motion for summary judgment, the FBI said that Exemption 7(C) shields it from producing “records or information compiled for law enforcement purposes … [that] could reasonably be expected to constitute an unwarranted invasion of personal privacy.”
     U.S. District Judge Rudolph Contreras threw out the case Tuesday after finding that Taplin “has not met her evidentiary burden of showing that a reasonable person would believe that the government is withholding information that could corroborate her theory that the third party committed the crime.”
     Contreras ruled against Taplin despite noting several factors that “weaken the rationales supporting Mr. Frank’s privacy interest in nondisclosure.
     Indeed a judge who recently sentenced Adam Frank to a 65-year sentence for an unrelated armed robbery remarked in court: “I am extremely, extremely, extremely concerned that if this man ever gets out on the street, he is going to do some serious harm to somebody, somewhere, somehow, someday, and that serious harm could include murder … You are a danger to society, you are really a danger to society.”
     “In view of the police report documenting Mr. Frank’s supposed admission that he killed a New Orleans police officer, and the sentencing judge’s damning statements about the threat Mr. Frank poses to society, it is not clear that an FBI admission that it has records concerning Mr. Frank would ‘engender comment and speculation and carr[y] a stigmatizing connotation’ far beyond that which already exists,” Contreras wrote.
     The court nevertheless found these points insufficient to back up Taplin’s assertions.
     “To show that ‘a reasonable person could believe’ that Mr. Frank was the killer, Ms. Taplin must point to evidence,” Contreras wrote. “But she provides only allegations.”
     Taplin also failed to show that the FBI even has documents related to Frank’s potential involvement in the murders, according to the ruling.
     “The complaint does not allege, for example, that the FBI investigated those murders, which would have made it likely that the agency’s documents regarding Mr. Frank are relevant to Mr. Lacaze’s case,” Contreras wrote. “In view of Mr. Frank’s extensive criminal background, it would not be surprising that the FBI has files on him. However, Ms. Taplin has not presented cause for a reasonable person to believe that the documents would have anything to do with the Kim Anh murders rather than Mr. Frank’s other crimes.”

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