'The Good Wife': Good Law? - Season 5, Episode 13
"The Good Wife" is back! It's been eight long weeks since a new episode, but the wait is finally over.
To start things off with a bang, this week's episode -- entitled "Parallel Construction, Bitches" -- dives into a complex wiretapping issue.
Without further ado, here's a breakdown of the episode:
Episode Recap (Spoiler Alert!):
In this week's episode, a saucy surveillance love triangle crops up between Florrick & Agos, the Drug Enforcement Agency, and the National Security Agency. Well, technically it's a rectangle because Lockhart & Gardner is being surveilled too. Alicia's drug smuggling client, Lemond Bishop, is at the center of it all.
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Meantime, at the governor's office, Marilyn hands over evidence of Peter Florrick's election fraud issue to the Office of Public Integrity, setting the stage for Alicia and Will to face legal trouble, because they were his attorneys during the time in question.
Legal Roots:
As its title suggests, this week's episode "traces" its roots to a real-life law enforcement process called parallel construction.
Parallel construction involves building a parallel evidentiary basis to cover up how the investigation really began. In the episode, Cary refers to a Reuters article when explaining parallel construction to his colleagues; indeed, Reuters broke a story about parallel construction and the DEA's Special Operations Division last August.
How it worked: The Special Operations Division (SOD) would use secret information (e.g., warrantless NSA surveillance) to locate and arrest drug suspects. But then, as a former DEA agent explained to Reuters, officers would "work [the investigation] backwards to make it clean."
Essentially, they would backtrack and find a more legally kosher way to reach the same conclusion. It's a means to alter the investigative trail. Pretty saucy, right?
Legal Fiction:
The episode underplayed the seriousness of parallel construction. DEA officials say the practice is legal and has been regularly used since the 1990s, but others question the practice's legality.
As the Electronic Frontier Foundation describes it, it's potentially "intelligence laundering": While money laundering involves using a legal front (think Walter White's carwash in "Breaking Bad") to cover up an illegal business (Walter White's meth-making), parallel construction creates a legal front for law enforcement cases based on illegal sources of information (for example, a warrantless search).
Search warrants must be based on reliable sources. Because parallel construction involves omitting facts about the real informants, it raises reliability issues regarding search warrants, which could be repugnant to the Fourth Amendment.
Even if the practice might be legal to establish probable cause for an arrest, it might violate pretrial discovery rules by burying evidence that could prove useful to criminal defendants. For those reasons, parallel construction raises a slew of constitutional issues related to the Fifth Amendment, Sixth Amendment, and Brady v. Maryland.
Legal Fact:
Just like the traffic stop that happened in this week's episode, parallel construction often occurred when an SOD tip alerted agents to search a certain vehicle at a certain time. "After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip," according to Reuters.
In the episode, the judge dismisses the warrant. Indeed, warrantless surveillance footage would (potentially) be considered illegally obtained under the Fourth Amendment and would (potentially) be inadmissible in court under the fruit of the poisonous tree doctrine.
Legal Babble:
Preservation order: The DEA attorney cheekily says he can't be asked to preserve evidence that doesn't exist. Preservation orders can be used to preserve a wide variety of evidence, including electronically stored evidence or physical evidence.
Transactional immunity: Will is offered transactional immunity -- immunity from criminal prosecution for an offense related to his compelled testimony -- in return for cooperating fully with the election fraud investigation.
The Verdict:
Parallel construction was a uniquely complex issue for "The Good Wife" to tackle in an hour. But considering this is part of the show's self-proclaimed "three-episode" event, perhaps it calls for an insanely meaty legal issue.
What did you think of this week's episode of "The Good Wife"? Is the show guilty of making any legal mistakes? Check back here for more legal recaps of "The Good Wife," and send us a tweet at @FindLawConsumer with the hashtag #TheGoodWife.
Related Resources:
- The NSA is giving your phone records to the DEA. And the DEA is covering it up. (The Washington Post)
- NSA Phone Tracking is Even More Extensive Than We Thought (FindLaw's Technologist)
- Blacks 4x More Likely to Get Arrested for Pot (FindLaw's Blotter)
- Daniel Chong, Forgotten in DEA Cell, to Get $4M (FindLaw's Injured)