Thursday, May 24, 2007

DAs: Cops Can Legally Tolerate Crimes By Snitches

Our friends at the Texas District and County Attorney Association's web forum have undertaken an interesting discussion about police tolerating crimes by confidential informants. Writes a prosecutor from Halletsville:
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.


Anonymous said...

The problem is simpler than you think. You have a cop who makes an arrest and a seizure, but keeps them off the books, rather than report the arrest and book the evidence. In his mind, he can always go back and 're-arrest' the perp, making a formal arrest which he will report. In his mind he can then book the 'evidence' as well.

Actually, he has obstructed justice, he has taken the law into his own hands, he has taken into his personal possession an illegal substance. And when he makes his daily report, he will falsify the police report.

Think what happens if he gets searched with the drugs on him, and then his story is he arrested somebody off the record, seized the drugs off the record, and that explains why he'd holding narcotics.

He'd better make sure he doesn't get caught with the drugs, or the money, or the gun, or he's going to jail and he knows it.

When you catch somebody talking about of both sides of their mouth, that's a sure sign they're lying.

Gritsforbreakfast said...

Well, he's not going to jail if one of THESE DAs gets to make the call, is he?!

To give full voice to the prosecutors' defense, from the comment string it appears a police report WAS filed but never forwarded to the prosecutor - they're actually advising the original poster to use a grand jury subpoena to get the documents from the PD.

Anonymous said...

This situation has come up.

It must be made abundantly clear to LE that any deal must be approved by those elected to make just those kind of policy decisions. I don't care about what a great deal it is, I don't care who you think you can get. The decision belongs to the office elected by the people to make criminal policy/prosecution decisions.

If they insist on doing it unilaterally, there must be consequences.

Anonymous said...

To All:

The problem is not as easy as it sounds. Most cops have other ways to keep arrests off the books. They simply log the evidence under an alias, a John Doe name, or a mispelled name so the record can't be matched to the correct name. Then they create a duplicate set of accurate reports that never leave the supervisor's office thus creating a fall back position if the snitch goes bad. This is the most common practice and it's cutting corners but the CUTS are in good faith. This like most other law enforcement practices have evolved in joint working groups as collaborative efforts. If 7 law enforcement agencies were working on a project and six had strict rules but the seventh did not. They'd let the seventh agency handle the informant with they're new innovative approach that's called misconduct by the other six. When scrutiny occurs, the other six point the finger at the seventh. The seventh points the supervision finger at the other six and the conundrum outlives interest in a very serious problem, since the the other fingers are really on the same hand.