Feds
Regain
Right
to
Use
Narcs
in
Oregon
Following
Reversal
of
Little-Known
Ethics
Law,
Constitutional
Questions
Remain
8/3/01
Thanks to a pair of bizarre, after-the-fact stories filed by writers for the Los Angeles Times and the Associated Press, DRCNet has learned that for a brief moment the citizens of Oregon breathed slightly more free, secure in the knowledge that no undercover agents lurked in their midst -- if they were even aware of that fact. That moment has passed, as quietly as it existed. And thus the strange press reports. The two stories, published on July 18 and July 30, accurately described the situation that had existed in Oregon since last August, when the state Supreme Court, in a case involving a lawyer in a civil matter misrepresenting himself to potential witnesses, ruled that all lawyers must abide by the state bar's rules against dishonesty, fraud and misrepresentation. In a stunning move, however, the court made no exemption for state and US Attorneys, ruling that a prosecutor who encourages an undercover police officer or civilian informant to lie or behave deceptively is in violation of the state bar ethic's code and subject to sanctions. Oregon law enforcement officials as well as FBI spokespersons wailed and gnashed their teeth for the reporters, bemoaning the way the curious state of affairs hamstrung their vital undercover operations. "I am a drug cop. Please sell me some heroin. That's literally what's required," an Oregon district attorney told the LA Times' Kim Murphy. FBI spokeswoman Beth Ann Steele must have been reading the same script. If the agency wanted to arrest a drug dealer, she told AP's Terrence Petty, "we'd have to walk up and say: 'I'm an FBI agent. Here's $10,000. I'd like to buy some coke.'" The US Attorney's office in Portland told the AP it had suspended some undercover operations and not approved new ones for fear of state bar disciplinary action. "I consider this the single greatest challenge as US Attorney in Oregon," acting US Attorney Mike Mosman told the AP. "People in this state are not getting the protection they're entitled to," FBI special agent in charge Philip Donohue warned the LA Times. Portland Police Bureau drug and vice officer Lt. Gary Stafford chimed in as well. "The federal agencies are now not willing to look at our cases if they involve any kind of undercover activity," he told the Times. "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." One small problem. The complaints and the news stories refer to a state of affairs that ended three weeks before the first story appeared, when on June 28 Gov. John Kitzhaber signed into law House Bill 3857, "an act relating to attorneys for public bodies; and declaring an emergency." The bill restores the ability of state and federal prosecutors to employ narcs. Or, as the bloodless language of the new law puts it, state and federal prosecutors -- and only state and federal prosecutors "[m]ay provide legal advice and direction to the officers and employees of a public body... or... of the federal government, on conducting covert activities for the purpose of enforcing laws, even though the activities may require the use of deceit or misrepresentation; and [m]ay participate in covert activities that are conducted by public bodies... or... the federal government for the purpose of enforcing laws, even though the participation may require the use of deceit or misrepresentation. (The full text and legislative history of the bill, which was passed by the House on June 4, the Senate on June 14, and signed by the governor on June 28 -- is available at http://www.leg.state.or.us/01reg/measures/hb3800.dir/hb3857.en.html online.) So what's with the time-warped news stories? DRCNet has no definitive answer, but some hints may lie in a brief mention in the LA Times story of the McDade law, a federal provision unknown to most Americans, but one that has driven federal prosecutors into fits of extreme pique. In a curious inversion of reality, the Times' Murphy wrote: "Although the Justice Department always has required its lawyers to abide by individual states' ethics rules, a controversial federal law passed in 1999 known as the McDade law makes it explicit." Well, not quite, and one must wonder whose perspective informed Murphy's vision. The law, named after former US Rep. Joseph McDade (R-Pennsylvania), was a response to eight years of investigations into McDade's activities by federal prosecutors, as well as numerous other allegations of prosecutorial misconduct by US Attorneys. In a move that flabbergasted the Justice Department, US Attorneys everywhere, and establishment pillars such as the Washington Post, Congress in 1998 passed the McDade bill, forcing federal prosecutors to abide by state bar ethics codes in the states where they practiced. Contrary to Murphy's version, the bill was passed precisely because US Attorneys would not abide by state ethics codes unless required. While congressman after congressman got up to address abusive practices by US Attorneys (colleagues referred to McDade's "persecution" by prosecutors who made up rules as they went along), then congressman and now DEA chief-in-waiting Asa Hutchinson denounced the bill. "This is a law enforcement issue," he told Congress. "This would jeopardize our fight in the war against drugs. The winner would be the drug cartels, fraudulent telemarketing operations and Internet pornographers." These two news stories would appear to be, at least to some degree, an opportunity for feds still fuming over McDade's strictures to bash their old nemesis by showing how having to hew to those pesky state bar ethics codes makes the world safe for all sorts of nefarious villains. Fortunately for the distressed lawmen, their friends in the Oregon legislature have already resolved that problem. Jesse Barton is Chief Deputy Public Defender for the Oregon Public Defender's Office and is also a member of the State Bar Criminal Law Section Executive Committee, which worked for months to craft a compromise position acceptable to defense lawyers and civil libertarians on one hand and federal and local law enforcement officials on the other. The committee's work was rendered moot by the legislature's action allowing prosecutors to be involved in "covert activities." "This bill has probably been in effect since at least June 8, because of its emergency clause," Barton told DRCNet. "The bar committee had taken an amendment that would have overruled this restriction on misrepresentation to the state Supreme Court, but the court unanimously rejected it. We were happy to work with bar members to come up with an amendment the court would accept, but instead the bar association went to the legislature and came up with HB 3857. This is not an even-handed bill." Barton grew more animated, the constitutional lawyer within starting to stir. "The fun is just beginning," he said. "There are at least two ways to attack this law. First, the Supreme Court has ruled that relations between opposing lawyers must be reciprocal, and this law, which gives only a certain class of attorneys -- prosecutors -- an exemption from the ban on misrepresentation, is not reciprocal. This is arguably unconstitutional as an equal protection violation," said Barton. "There are also separation of powers issues here, with the legislature overriding the state Supreme Court," Barton added. "This is ripe for at least two constitutional attacks. Also, defense lawyers should be trying to ferret our whether any facts obtained by the state were in violation of the court's rule while it was in effect. I'm going to do everything I can to make defense lawyers aware of this issue."
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