Saturday, August 25, 2007

If not snitching is criminal, who will prosecute the FBI?

Here's an interesting idea: A crime you don't commit, where you can violate the law simply by remaining silent, minding your own business and doing nothing.

Well before the current "stop snitching" fad, Texas legislators had already decided that people who didn't report serious violent felonies deserved to be prosecuted. The Fort Worth Star-Telegram reports ("Police: Man didn't report beating," Aug. 25) Tarrant County man has been charged with:
failing to report a felony, a relatively new and rarely used Class A misdemeanor charge punishable by up to one year in jail and a $4,000 fine. Enacted in 2003, the law makes it a crime to not tell law enforcement about a felony involving serious bodily injury or death.
I'd forgotten all about that bill, and don't think I've heard of a case actually brought under it before. Recalling it in the context of today's "stop snitching" debates I find it interesting on several levels, not the least of which is that the "act" of not coming forward, at least regarding specific crimes, has been criminalized in Texas. I wonder if that's the case in other states? Any readers who know, help me out on this one.

Second, I wonder if a "witness" simply not telling should be a crime? If that person themself is involved, then they are an accomplice and partially culpable. But if a witness does not report a violent crime for whatever reason - out of fear, familial loyalty, or any number of motives - I think there may be unintended consequences that haven't been fully considered if such folks are subsequently prosecuted. Will this threat compel more people to come forward, or will it cause them to band together with the criminals in view of their common carceral threat from the DA?

Finally, I can't help but recall that we learned recently from Congressional testimony in Washington D.C. that the FBI does not always report "serious violent felonies" committed by their informants to state or local law enforcement. Does this mean FBI agents who do that in Texas are committing a crime? And who is responsible for prosecuting that omission?

What's good for the goose is good for the gander. There are a lot of reasons people don't volunteer to become a witness, from the neighbor fearful for their safety to the FBI agent who fears exposing an informant. Prosecuting an omission, a failure to act, is a tricky business. Indeed, it seems like we already have enough crimes actually committed without prosecuting too many folks whose sin is to do nothing.


Anonymous said...

One caveat, Grits. If child abuse is not reported, that act of omission is a crime. This isn't something most of us who worked long and hard to get in an effort to give children a voice against violence would ever want changed. You get into all sorts of nooks and crannies on this idea of failure to report. What about protected relationships such as doctor-patient (other than children)? I think that most of us react to the ability of law enforcement to find ways around the law in their effort to enforce the law. Which outweighs the other and who should be able to determine the cost-benefit?

Gritsforbreakfast said...

Thanks for saying that, Nurit, you're right.

I don't know what is the law on family members who know about child abuse and don't report it (perhaps someone else does), and to be honest I don't know what I think it should be. I can see where it could become a slippery slope and prevent witness cooperation, or I can see a prosecutor successfully using the threat to extract more information. Those are complicated moral and practical dilemmas about which I don't know the answer.

Now, the duty to report by those who deal with children in a professional capacity - doctors, child care workers, teachers, etc. - is a different matter. There I ultimately come down in favor of a duty to report. But I should add this qualifier, that some people I respect think even that's a bad idea:

When I worked at ACLUTX I heard several public school teachers complain that these requirement made them agents of law enforcement which added to the massive list of duties - police, social worker, morals instructor, bureaucratic paper pusher, oh, and teaching. They said all of society's expectations on every social issue get loaded onto teachers and hindered other parts of their job. I don't know if those are valid concerns, or how to balance the cost benefit, but the teachers expressing such views weren't bad people, just frustrated.

If I'm not mistaken, I think doctors also have a duty to report such crimes, I don't think privilege survives that, but IANAL and I don't know for sure. Perhaps somebody else does.

You're right about these cases having "all sorts of nooks and crannies" - that's why I wonder whether whether it's good public policy.

I don't 100% know what is my opinion about such a law, which actually is why each of the three points in this post end in questions rather than statements. I do find prosecuting witnesses a weird and unique Texas twist among the various official responses to the "no snitching" situation on non-child abuse cases. Thanks for the comment. :)

Anonymous said...

I think this is just the trend of law enforcement lobbying to make more and more things crime, and to make existing crimes bigger crimes.

At the same time, when law enforcement (and corrections) commit the same acts, they are not crimes. The same holds for the FBI.

The Feds often witness crimes over a period of years without informing any district attorney or the police. The idea is to roll up as many people as they can at once with as many charges as they can.

There is no point trying to reason with law enforcement or corrections, because they genuinely do not see their crimes as crimes. The only hope is locking them up for life or putting them in the ground -- and they won't let any of that happen. Remember who has the guns and badges.

Anonymous said...

The duty to report child abuse trumps the attorney-client relationship: If your client tells you he abused a child, the statute nurit alludes to requires the attorney to report that offense. UNLESS the offense has already been reported to law enforcement. The same is true if your client tells you she is going to commit violence or deadly violence against another person, and you, as the attorney, have reason to believe the client is telling you the truth. "I'll kill the SOB" probably does not meet the threshold inquiry.

I think, correct me if I am wrong, that the duty to report a felony has long been a federal criminal offense. For some reason, the term "misprison of felony" comes to mind. I read recently, somewhere, of someone being prosecuted for the offense in federal court.

As for the FBI, all those guys should be prosecuted if they did not report felonies and if there is no "law enforcement exception" to the offense, such as there is for handling, possessing, and distributing drugs as part of an "investigation". If the offense of non-reporting occurs in Texas, there is no reason the local DA should not have jurisdiction.

I would just love to see what would happen in those circumstances in some of the more "lawn order" counties, such as Williamson, where the prosecutors consider themselves an adjunct to the law enforcement community.

Matt Bramanti said...

When I worked at ACLUTX I heard several public school teachers complain that these requirement made them agents of law enforcement which added to the massive list of duties - police, social worker, morals instructor, bureaucratic paper pusher, oh, and teaching.

This suggests that they wouldn't report child abuse unless forced to.

They shouldn't be teaching.

Gritsforbreakfast said...

Matt, the concern was that by requiring it they may be held liable for not seeing warning signs that could be ambiguously interpreted until after something bad happened. (Hindsight, of course, is always 20/20.) Do you report the kid with bruises or assume it probably happened on the jungle gym, that kind of thing.

I think you've interpreted their position particularly uncharitably, which is why they feared criminal liability in the first place. There is frequently a lot of gray area before one can be sure they "know" about true allegations of child abuse. Those gray areas sharpen up in retrospect, but by then you're holding people accountable for things they couldn't know at the time. I understand their desire to avoid that situation, though as I said, I do come down on the side of a duty to report for teachers.

Anonymous said...

As Howard Hickman has consistently pointed out, making sense of law is a no win situation. E.g. there is usually restriction about "knowingly" not reporting child abuse, not should have known. Also, not sure why you think doctors should but teachers should not be held accountable (who sees kids more often and more likely to note changes?). The Catholic church has consistently required priests to maintain the sanctity of confession to encourage sinful people (who may also be criminals) to seek salvation (not to mention the trusted priest to encourage the confessing person to seek help or to go to the cops (not meaning to single out RC, but the practice of formal confession is better known there). I asked this of Howard before, but I will address it to Scott this time: does the minister , judge or priest that performs a marriage ceremony for a pregnant 14 year old...should they obligated to inform law enforcement of sexual abuse of a child who could NOT GIVE consent for the act that resulted in that pregnancy.

Anonymous said...

It's all about trusting someone to do the right thing. When law enforcement lies about drugs to the public, uses subterfuge to gain access to personal space, disguises their identities to gain trust and then betrays that trust, and plant drugs on suspected criminals, why should we trust these guys? The law should be the arbiter between personal disputes. It should maintain some semblance of order. It should not enforce personal morality and play the public as enemies. When we pass these kinds of laws we invite corruption and mayhem within the police ranks.

Anonymous said...

jt: well said. Years ago, it was pointed out that if no cop had ever violated a suspects rights, the Supremes would never have ruled on Miranda or Esposito (?)the way they did.
Maybe we were and are naive regarding how the world "really" works. Somehow, we either have to get back to a point where we trust the majority of politicians, police, judges, businesses etc etc
or we have to admit the world is evil and stop procreating so our kids do not have to grow up in an amoral world that we created or allowed to continue. I am beginning to wonder if depression is the better part of valor.

Anonymous said...

How do you know if something is a felony before someone is convicted of the crime?wmrqfciz

Gritsforbreakfast said...

@9:09 - The feds know what the elements of the crime are that they suspect has been committed and if in their professional judgment the informant's actions are felonious, they should prosecute or report it to someone who can. Remember, we're talking "serious violent felonies" - I don't think they're too hard to distinguish from lesser crimes.