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 district attorney.

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 year.

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 and misrepresentation.

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.