The Federal Public Defender’s office and a prominent Seattle criminal defense lawyer want prosecutors to review cases investigated by a federal agent who has a Nazi tattoo and is accused in a civil-rights lawsuit of harassment and discrimination against a female African American colleague.
Seattle Federal Public Defender Mike Filipovic said Tuesday the very existence of the tattoo on the upper arm of Bradford Devlin, an ATF supervisory agent working out of the Seattle division of the Bureau of Alcohol, Tobacco and Firearms, is “evidence that a federal law enforcement agent who has worked criminal cases has a bias against certain minority groups.” That triggers requirements under federal case law to notify defendants — both past and present — of that information, Filipovic said.
“Obviously, it would be case-by-case what is done with the information,” Filipovic said. “But it is the government’s responsibility to notify a defendant that a bias could exist.” That information could result in appeals or requests for new trials or hearings, compromising criminal prosecutions, he said.
His concerns were raised after The Seattle Times reported Sunday that the tattooed ATF special agent, who works as a supervisor in Eugene, Oregon, is at the center of a federal civil-rights lawsuit filed by an African American supervisory special agent, Cheryl Bishop. Bishop claims Devlin has disparaged her and copied her on racially insensitive emails. Bishop’s lawsuit, filed last year, has been propelled by recent decisions by U.S. District Judge Thomas Zilly, who swept aside efforts to dismiss the claim and ordered the case to trial next month. For the second time, Zilly on Monday refused to give the government more time to prepare its case.
Federal civil lawyers, meantime, say they have entered into settlement talks with Bishop’s attorneys. While the lawsuit is pending, they declined to comment on the potential impacts of the alleged bias on other cases.
Devlin got a Nazi-themed tattoo — which shows a German eagle with “SS” depicted as lightning bolts — in the early 2000s and has declined to have it removed at the agency’s expense, according to court documents. Devlin said he got the tattoo while working undercover with The Order of Blood, an outlaw white-supremacist biker gang in Ohio.
His supervisors have said they were “appalled” when they learned he kept the tattoo, the lawsuit alleges. And Bishop claims that when she complained about Devlin’s alleged harassment in 2016, the agency retaliated by scuttling a prestigious appointment to work at its Washington, D.C., headquarters. Court documents say that Devlin reportedly badmouthed Bishop to federal prosecutors in Oregon when she was named to temporarily replace him. He and Bishop reportedly clashed repeatedly when he supervised her from 2009 to 2011.
Federal defense attorneys say evidence of racial bias uncovered in the civil lawsuit could impact Devlin’s work as a federal law-enforcement agent, because the U.S. Supreme Court, in a landmark 1963 case, Brady vs. Maryland, states that the government must turn over to a defendant any potential evidence that might prove exculpatory. That would include evidence of bias on the part of investigators, said Filipovic, who heads the Federal Public Defender’s Office in Seattle and Tacoma.
A related 1973 Supreme Court ruling, USA v Giglio, requires the government to make similar disclosures of information to a jury during a trial.
“The government has an obligation to provide the defense with exculpatory evidence,” Filipovic said. “The question becomes how far they need to go. What do they do now? Do they send out letters to everyone who has had a case that materially relied on or involved this agent?”
That has happened, he said, such as when flaws were found in procedures used at the FBI Crime Laboratory.
Once the defense attorney is notified of the possible bias, Filipovic said, it would be up to them to decide what to do with the information or if it was relevant to their case.
Another Seattle federal criminal lawyer, John Henry Browne, said any evidence of racial bias on the part of a federal law enforcement agent “would definitely be Brady material for any person of color, gay folks and Jewish people.”
“And, remember, the Nazis also went after trade unionists and the Protestant clergy,” Browne said.
Lisa Hay, the federal public defender in Oregon, said she had distributed a copy of The Seattle Times article about Devlin to attorneys in her office. “It’s interesting … But I don’t have any comment for you on the record right now,” she said.
Devlin was transferred to Eugene as the resident agent in charge after a stint as supervisor of a gun-crime task force in Seattle between approximately 2006 and 2011. The Seattle Division of ATF encompasses Washington, Oregon, Idaho, Alaska, Hawaii and Guam.
Before that, he worked in Ohio, where he infiltrated a white-supremacist motorcycle club. It was there he and at least two other undercover agents received tattoos as part of a gang initiation, according to court documents. In a sworn deposition, Devlin has said the large tattoo is a “war trophy” and that he won’t remove it until the other agents remove theirs.
The ATF offered to pay for its removal — a common practice for undercover agents who receive offensive tattoos — but Devlin declined, according to court documents. Supervisors at the agency, in sworn testimony, have said the tattoo is offensive and that they were “appalled” that Devlin continued to wear it for more than a decade after his undercover assignment had ended.
Federal prosecutors in Seattle and Portland declined to discuss whether they believe the tattoo or Devlin’s actions as an agent — including the allegations that he sent racially offensive emails with his government account — would trigger the requirements of Brady.
“We respectfully decline to comment” while the lawsuit is pending, said Devin Sonoff, the public information officer at the U.S. Attorney’s Office in Portland.
The U.S. Attorney’s Office in Seattle pointed out that Judge Zilly’s decision to send Bishop’s civil-rights lawsuit to trial “simply determined that there are issues of fact still to be decided,” said Emily Langlie, a spokeswoman for Seattle U.S. Attorney Brian Moran.
“The United State’s Attorney’s Office takes its Brady obligations very seriously, and Brady issues and notifications are dependent on findings and facts,” she said. “Thus, it would be speculative to comment about any collateral impacts, including potential Brady obligations, before those findings and facts are known.”
