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?
I am not aware of any crime he has committed, but you are not bound by the police officer's decision. You have the authority to go forward and file charges in county court.
I think part of her question centers on the fact the offense report is never forwarded to the prosecutor. If a prosecutor asks for a copy of an offense report and NEVER gets it, how does the prosecutor file the charges?
Assuming the prosecutor also has felony jurisdiction, issue a grand jury subpoena for the police officer and the report. Even though it is a misdemeanor, the GJ can still consider it. I imagine that doing that once or twice may solve your problem. You might try talking to the head of the agency (Sheriff or Chief) first.
Do you prosecute misdemeanors and felonies? In a relatively small jurisdiction I wuld think that you could let your local officers know that you want to be included in the decision to use someone as a CI.You need to have a good relationship with your officers in order to work drug cases. You said that the Defendant was forced to act as a CI. Sounds like a Defendant has convinced you that he has been coerced into working. Why not let an officer make a good case against a drug dealer? The Defendant who testifies will have burned his ties with the local drug dealers and maybe learned a lesson.
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.
C.I.'s are not violating the law by being confidential informants. Even if they end up purchasing a controlled substance, they are not violating the law, if they are doing so under police direction. There is no criminal intent.
They are, however, violating other conditions of probation. It's hard to see how a C.I. could be much of a C.I. if he didn't associate with disreputable people. Might also have to go to a bar and drink a beer, or stay out past 10 p.m.
Another thread hijacked into Grits. http://gritsforbreakfast.blogspot.com/
Another reason for a non-public forum. To discuss important legal challenges we all face without derision or insults.
Feel free to donate to the Foundation; one of its first tasks will be to update the TDCAA website!
It seems to me that because this organization is supported by public tax dollars, whether through grants or membership fees (which are paid for by the county), that it would be terribly improper to not allow the public access or to set up some sort of "secret" forum.
Really? And do you feel the same way about the criminal defense attorney web site that has such limited access? Isn't it at least arguable that discussion of sensitive issues could be limited? Do you also think the public has a right to listen in on our phone conversations? Just how far does your sense of openness extend when it involves your work conversations?
The use of public funds doesn't automatically make the information public. The use of public money also doesn't cause anyone to surrender their right to privacy in total.
By what legal theory do you think that the conversations must be open to the public? Please explain what law violation would occur, making it "terribly improper"?
I second that emotion, JB. And, do you mind if I steal the words of your post and make a bumper sticker out of that and put it on Greg's shopping scooter?
Exit only for grits and gumbo, not just for breakfast anymore.
I agree as well, JB.
As for you, AP, I do not, I repeat, do not own, lease, operate, borrow, sit on or even covet a scooter of my own. But next time you come to town, we can go to wal-mart and have a world champeenship race to the dairy section.
I think I did see, however, a dude driving a scooter down Congress this weekend holding a sign that said "will blog for grits". The scooter was moving pretty fast and interestingly, was driving on the left side (the wrong side) of the road, so I couldn't get a clear look at his sign. It could'a said something else. Any idea who that could'a been?
Could be, under 39.02, 39.03, 38.171, and 38.05. Worth a bit more investigation, I think. I'm curious as to what Ms. Huser thinks the crime might be.
I also notice that most of the other responses did not even address her question.
Administrator posted 07-25-06
Thank all of you for your replies (except you, Brumley -- discussing my delicate sensiblities in public has offended my ... well, my delicate sensibilities).
Past experiments with "closed" or "member-only" forums have withered on the vine due to lack of interest. I don't think we will be doing that again. If you have a sensitive question, please call or email our research attorney -- that's what he/she is for. We'll leave the super-secret skullduggery to the defense lawyers' website.
Keep an eye out for other website-related queries in the future; some big changes could be coming over the next year ...
I would respectfully disagree with the suggestion that Ms. Huser's question was dodged. Granted, a tangent arose. But that happens, and it only shows that discussions evolve.
This forum exists to promote discussion among prosecutors about our work with as much candor as is feasible. In evaluating a given set of facts for the potential of criminal prosecution, prosecutors must be mindful of the fact that a case is driven not only by whether the elements of a crime are arguably present. We are obligated by art. 2.01 to make our best effort to ensure that justice will be served in each case we handle. Thus, it is usually appropriate to look at the bigger picture when evaluating a set of facts. Discussion of how law enforcement makes use of confidential informants, and how those informants are cultivated, is part and parcel of that perspective in the context of Ms. Huser's question.
Of course, there will always be those who disagree with a prosecutorial decision or with prosecutorial philosophy in general. That's the nature of our adversarial system. Robust discussion (and criticism) can help vet problems with those decisions or philosophies, so it's not a bad thing unless insults, rather than issues, become the order of the day.
Perhaps there is more to the story than we know. And, certainly, there seems to be a disconnect in the essential line of communication between law enforcement in the field and the prosecutor's office. Was this good police work? Maybe so; maybe not. But, given the description of the scenario within the question, I don't find enough information to comfortably conclude that the officer committed a criminal offense, at least without further indication of personal benefit, fraud, harm or other facts bearing on culpable mental state. I emphatically agree, however, with the suggestion that the case and its related concerns should be thoroughly discussed with the law enforcement agency at issue.
It could not be better stated than Mr. Brumley, Esq., stated above.
I would only further say that this website does not exist to ferret out crime by police or to give legal opinions regarding police action. IT IS a place for prosecutors to ask questions and hopefully get answers to those questions in a respectful manner.
I respectfully reserve the right to derail any thread on this forum. As one of the wisest men I know once said..."Exit only".
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