Oregon prosecutors ordered to be honest
In breaking news as we go to press, Los Angeles
Times writer Kim Murphy wrote on July 30 that "If you're
a federal agent in Oregon these days, the law requires you to
tell the truth, the whole truth and nothing but the truth - even
when you're working undercover."
"I am a drug cop; please sell me some heroin. That's literally
what's required," whined Joshua Marquis, Clatsop County
A sweeping ruling last year by the Oregon Supreme Court mandated
that all lawyers - even government prosecutors overseeing organized
crime and drug cases and state investigators conducting consumer-fraud
and housing-discrimination probes - must abide by the Oregon
state bar's strictures against dishonesty, fraud, deceit and
misrepresentation, wrote Murphy.
Under the court's interpretation, a prosecutor who encourages
an undercover officer or an informant to lie or misrepresent
himself could lose his license to practice law. The provision
has been most problematic for conflicted federal prosecutors
who are sworn to uphold all laws, obey federal law first, yet
follow the sound principles evoked in the Court's ruling last
As a result, the state attorney general's office, FBI and DEA
have halted virtually all extensive undercover operations. Local
police agencies have canceled most covert operations in drug
cases that could end up in federal court. "People in this
state are not receiving the protection they're entitled to,"
cried Philip Donohue in the Times' story.
Donohue, acting special agent in charge of the FBI office in
Portland, said this ruling "has impacted a substantial amount
of the criminal work that would ordinarily be done within the
state of Oregon." To subvert the ruling's intent, and salve
hurt-feelings, lawyers for the state bar have met repeatedly
in recent months in an attempt to craft a way around the restriction,
perhaps by exempting government prosecutors.
Such subversive efforts are not going smoothly. Veteran observers
of the bar associations see deep philosophical divisions over
the role of lawyers in overseeing covert probes - and whether
modern law enforcement is simply relying too heavily on trickery
Because we all know that police love doing secret, undercover
work, "It sounds like there should be a very simple solution,"
said Ed Herden in Murphy's story. Herden is president of the
state bar and a Portland lawyer. "Everyone agrees that lawyers
should not misrepresent themselves as something other than what
they are. With the restrictions in place, how do we provide the
police with meaningful advice as to how to act in a legal manner?"
Well, that is a huge question isn't it? Thousands of Razor Wire
readers might have an answer for Mr. Herden to help him embrace
integrity over expediency in law enforcement. Including the mighty
voice of retired police chief Joe McNamara in this issue, the
honest cops are breaking ranks and admitting that breaking the
law to enforce the law means no law at all.
The Supreme Court ruling began with a private attorney who, seeking
to gain information for a civil lawsuit in an insurance case,
conducted his own sting operation and made phone calls in which
he represented himself as a doctor. The Oregon Supreme Court
last August found that the lawyer had engaged in dishonest conduct
in violation of state bar rules. The court also ruled that the
ethics code does not contain exceptions for government lawyers
overseeing legal law enforcement operations.
Although the Justice Department has monotonously claimed for
years that it has required its lawyers to abide by individual
states' legal ethics rules, a federal law passed in 1999 known
as the McDade law makes it explicit. Federal prosecutors must
abide by all state bar ethics rules.
As a result, the U.S. attorney in Oregon, Mike Mosman pulled
his lawyers out of undercover operations. The FBI has halted
the use of informants in at least two multi-arrest drug cases,
three extortion cases and a white-collar crime investigation.
Local district attorneys do not have the McDade law holding their
feet to the fire, but most police agencies prefer to have a prosecutor
overseeing complex investigations, wrote Murphy. "The federal
agencies are now not willing to look at our cases if they involve
any kind of undercover activity," said Lt. Gary Stafford
of the Portland Police Bureau's drug and vice division.
"That kind of puts a big roadblock in our way as far as
taking down any of the substantial quantity dealers that should
be prosecuted federally," moaned Stafford. Perhaps Lt. Stafford
hasn't been studying any drug war facts, something he should
be doing as part of his job. Those facts would show a clear pattern
over many years of steady prices in the underground drug economy
and no problem getting the banned substance desired. In a different
real world economy outside of police work, public employees would
be fired for failing to do their main job of reducing the harm
from dangerous drugs. You have to break the law to make interdiction
work, secrecy is your obsession, and interdiction isn't reducing
drug price or supply? You're fired!
Earlier this month federal prosecutors rejected a major case
involving so-called "club" drugs such as Ecstasy, because
it involved undercover operations and confidential informants.
The Oregon state bar attempted one fix, an amendment to the ethics
rules that exempted lawyers who are conducting or supervising
operations involving "legal covert activity" - as long
as they didn't participate in the operations.
The Oregon Supreme Court in April 2001 rejected that policy as
too broad, and so the state bar's board of governors is trying
to draft another amendment. The problem is, concluded Murphy,
that "many lawyers, especially defense lawyers, think that
undercover operations have gone too far and that government prosecutors
are taking too big a role in conducting them."
That conclusion deserves a round of applause from prisoners,
their loved ones, reformers, activists, most judges, and substance
abuse counselors for lawyers everywhere who also are seeing that
there is no justice in the war on drugs.