Here's the scenario: Law enforcement receives report of crime; investigates crime; determines probable cause; never forwards case to prosecutor but instead makes a deal with defendant to work as informant on unrelated case. Defendant is coerced to cooperate with the promise that the case will not be filed if act as informant. Although a misdemeanor with a victim has been committed, I, as the prosecutor, am never contacted about this deal. Has the law enforcement officer committed a crime?The response from Columbus prosecutor Ken Sparks surprised me:
I am not aware of any crime he has committed, but you are not bound by the police officer's decision. [!!!]I'm not a lawyer, so I have no idea if he's right on the law about the cop committing no crime (though I don't see why he's not obstructing justice). That determination must be left to the JDs in the crowd. But think about this - the officer has committed no crime, apparently, by knowingly tolerating crime in the jurisdiction, even when there's a victim, no less, not just petty drug charges! But Sparks says the prosecutor is not "bound" by the officer's decicision.
Well, she would have been if she hadn't discovered the officer's ruse! If the cop never told her, how could she act? I think in practice she is "bound," or perhaps more accurately handcuffed by the decision to tolerate crime by informants - she can't prosecute crimes of which she's never informed!
Forum regular Greg Gilleland identifies another big problem with police making unilateral decisions about letting informants get away with crimes - if the informant is on probation the cop is coercing them into violating a judge's probation order:
And of course another problem with LE making CI decisions involves those who are on probation for another offense. There is no quicker way to upset a judge than to use their probationer as a CI without the judge's consent and approval. Which I have found to be rare, since a standard condition of probation involves obeying the laws, which a CI is technically in violation of when acting as a CI.I find this whole discussion fascinating: We've got a crime and a victim, a police officer knowingly ignoring the crime and then palling up with the perpetrator for a different purpose. Is this justice? For the victim? For the CI? For the officer?
To me it looks like a big mess, a legal, political and moral mess. This is why records about informant agreements should be as transparent as possible, and they should be in writing, approved at least by prosecutors and IMO also judges. Without strict oversight, there's a lot of room for bad outcomes that actually create more crime.