The most important rebuttal against a defendant’s accusation of entrapment, especially when government agents have, over time and through multiple meetings, provided the means and methods of the charged crime, is the first conversation with the accused. As long as the defendant willfully expresses in his first conversation with government agents his clear intent to commit the crime that is later developed with their assistance, the agents are usually secure in their statements that they did not entrap an otherwise innocent person with no intent to commit the eventual crime.
It is very important, therefore, that there be a contemporaneous record of that first conversation, in which the defendant expresses directly and through unambiguous tone his intent and willingness to commit a crime. It is only by using that record that the government agents can rebut the accusation of entrapment.
In today’s world, that record is expected to be an actual recording of the conversation. Which brings us to the filing Thursday in federal court in Portland, where Mohamed Mohamed and his attorneys, and the judge trying the case, heard for the first time what, exactly, happened to the recording supposedly made by the FBI during agents’ first conversation with him.
The FBI’s attempt in July to record Mohamed Mohamud’s first words about taking part in a bombing failed because a recorder ran out of juice, government prosecutors revealed in court papers Thursday.
“Put simply,” they wrote, “it was human error: the device was accidentally turned on hours before the meeting time and therefore ran out of battery power as the meeting began.”
Luckily, lots of other FBI agents, listening through their earpieces, heard the conversation and are prepared to testify to Mohamed’s predisposition to commit a crime that would hurt innocent Portlanders. I’m sure the accused’s defense will be happy with this second-hand evidence of their client’s guilt, provided by government agents with no stake in the case’s outcome.
Especially since there’s extensive documentation regarding the dead batteries:
The government has provided Mohamud’s defense team with extensive documentation about why that conversation wasn’t recorded, prosecutors wrote.
An FBI agent typed up a report, based on his raw notes, on all the meetings between Mohamud and the bureau’s undercover operatives, including the July 30 conversation, according to the government’s filing.
Or, you know, maybe not.