PURSUIT OF TRUTH HANDCUFFS CRIME FIGHT IN OREGON

Ethics: Undercover Operations Have Ceased As Ruling Threatens Punishment
For Law Enforcement Deceit.

PORTLAND, Ore. -- 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. And that has brought
major law enforcement operations all over the state to a virtual standstill.

"I am a drug cop, please sell me some heroin. That's literally what's
required," explains Joshua Marquis, the Clatsop County district attorney.

A sweeping ruling last year by the state Supreme Court mandated that
all lawyers--even government prosecutors overseeing organized crime
and narcotics 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. 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.

Federal Prosecutors Hit Hardest

The provision has been most problematic for federal prosecutors, who
typically have a much more intense day-to-day role in overseeing major
investigations conducted by the FBI and the Drug Enforcement
Administration to be sure that they comply with complex provisions of
federal law.

As a result, the state attorney general's office, the FBI and the DEA
have halted virtually all big undercover operations, and 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," said Philip Donohue, acting special agent in charge of
the FBI office in Portland. "This has impacted a substantial amount of
the criminal work that would ordinarily be done within the state of
Oregon."

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. But they have run into 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.

Since no one really wants to halt police undercover work, "it sounds
like there should be a very simple solution," said Ed Herden,
president of the state bar and a Portland lawyer. "Everyone agrees
that lawyers should not misrepresent themselves as something other
than what they are. But [with the restrictions in place] . . . how do
we provide the police with meaningful advice as to how to act in a
legal manner."

The dilemma 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 always has required its lawyers to
abide by individual states' legal ethics rules, a controversial
federal law passed in 1999 known as the McDade law makes it explicit,
legally requiring federal prosecutors to abide by all state bar ethics
rules.

Investigations Put On Ice

As a result, the U.S. attorney in Oregon, Mike Mosman, has pulled his
lawyers out of undercover operations. And the FBI has suspended a
child pornography investigation developed by undercover agents and
halted the use of cooperating witnesses in at least two major drug
cases, three extortion cases and a major white-collar crime
investigation.

"When we try to go after sexual abusers who lure young children in
Internet chat rooms, a very traditional tactic is to pose as a
12-year-old girl," Mosman explains. "In extortion cases, rather than
wait for the next raid, you have the victim phone up the extortionists
in a monitored call."

In each case, the lawyer overseeing the investigation is not actually
lying. But the Supreme Court ruling seemed to say that "material
omissions" were as bad as lying when it came to violating ethics
rules, Mosman said.

A Roadblock For Major Drug Cases

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, and that oversight is mandatory if
the case is going to be tried in federal court.

"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."

Earlier this month, according to Stafford, federal prosecutors
rejected a major case involving "club" drugs, such as Ecstasy, because
it involved undercover operations and confidential informants.

The 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 Supreme Court in April rejected that policy as
too broad, so the state bar's board of governors now is trying to
draft another amendment.

The problem is, many lawyers, especially defense lawyers, think
undercover operations have gone too far and government prosecutors are
taking too big a role in conducting them. If prosecutors can engage in
misrepresentations, why can't defense lawyers use similar tactics in,
say, attempting to impeach government witnesses, many wonder.

"Is it consistent with our democratic system to allow the government
to engage in deceit but preclude others from doing so." asked federal
public defender Stephen Wax in a recent Federal Bar Assn. newsletter.

"One of the questions raised is whether we, as a society, should be
relying on undercover operations to the extent that we do," Wax said.
"Undercover operations are a corrupting influence on law enforcement.
It is not only cooperating witnesses who lie out on the street but
also the police themselves who go undercover. When people get in the
habit of lying, the distinction between truth and fiction can blur. .
. . When one value--fighting the war on drugs--is seen as higher than
another--honesty or ethical norms--behavior has a tendency to be
pushed to extremes."

McDade Law Called 'Counterintuitive'

All the more reason, prosecutors argue, to have a lawyer overseeing
the police, making sure they adhere to the law.

"The right kind of system to have is for the agents on the street to
run questions that go to serious privacy issues by a federal
prosecutor, to ensure the propriety and legality before it goes
forward," Mosman said.

"It's completely counterintuitive," Marquis added. "If anything, you
would want lawyers, who have all kinds of ethical obligations on them,
to be having as much influence on law enforcement as possible."

The Justice Department has filed a lawsuit seeking to exempt federal
prosecutors from the bar's code of conduct. The board of governors
could have a draft rule for the Supreme Court's review by September.

But, Marquis said, the effect of the rules as they stand will become
more apparent in the coming months.

"We have not seen prisons emptying out. The impact is much more
subtle," Marquis said.

"The cops are perfectly capable of conducting investigations without
the D.A. looking over their shoulders. They'll go ahead and do it
anyway, they'll do it wrong and, when we get a motion to suppress the
evidence they collect a couple months later, we'll lose."