QUESTION OF ENTRAPMENT FOLLOWS IN WAKE OF COP BUST

As news of the arrests of eight San Antonio police officers on
drug-trafficking charges spread across the city last week, so did talk that
the officers may have been unfairly caught in a trap — lured into doing
something they otherwise wouldn't have.

Federal authorities on Thursday announced the arrests of the eight San
Antonio policemen and two other local law officers, outlining an undercover
plan in which agents posing as drug dealers approached the officers seeking
help in transporting and protecting drugs crossing through the city.
According to authorities, the officers accepted money in exchange for
carrying what they believed to be cocaine.

That's the kind of scenario that could lend itself to an entrapment
defense, several legal experts said, although none of the attorneys
representing the officers have said they will use it.

"It's too early to say whether entrapment will be a defense," said Chris
Gober, who is representing Peter Saenz, a six-year veteran of the San
Antonio Police Department.

"It's too early to make a definitive statement on where the case is headed,
but I do think it's unusual in that in most drug-trafficking cases
involving police officers, the investigators learned of the allegations,
investigated and collected the evidence they needed to make their cases.
This case seems to differ. Apparently, there was no cocaine."

Federal prosecutors declined to discuss their case against the officers,
but did say they were confident the charges would hold up.

"I'm aware entrapment is being discussed in the city, but we'll let the
evidence speak for itself," said Bud Paulissen, chief of the major crimes
unit of the U.S. attorney's office. "We think the evidence will speak
clearly about whether there was entrapment or not."

According to the experts, if the officers choose to use the entrapment
defense, they will have to show they were unwilling to engage in a criminal
act, but were persuaded to do so by the law enforcement agents. That's a
difficult defense, acknowledged Jimmy Parks, the lawyer representing Arthur
Gutierrez, a 15-year patrolman.

"I'm not so sure that entrapment will fly," Park said. "It's a really tough
defense for citizens to accept when they're sitting on a jury."

But it's not unheard of.

Former Washington, D.C., Mayor Marion Barry, caught on videotape smoking
crack in a motel room, used the entrapment defense. So did automaker John
DeLorean, who was arrested by undercover agents after making a drug deal on
videotape. DeLorean was acquitted. Barry won a mistrial on the federal
charges, though he was convicted of misdemeanor cocaine possession.

Geary Reamey, a criminal law professor at St. Mary's Law School, said the
problem with entrapment is that cases are usually not all that clear.
That's why law enforcement officers working undercover are generally taught
to leave their questions with potential criminals sufficiently open-ended
so the suspect has the opportunity to say, 'No.'

"That person has a lot of options. They can say, 'No, I don't know what
you're talking about or I don't do that,'" Reamey said. "It's when law
enforcement narrows those options, so that they are trying to persuade
someone to act in a certain way that is criminal, than they've gone too far."

Bill Johnston, a former federal prosecutor in Waco, said good agents are
careful to allow the suspect free will.

"He has to make sure he allows the suspect to have his will, rather than
offering such a temptation or such an opportunity so very strong that it
overrides his will," Johnston said. "The most famous case of where it was
argued successfully is the DeLorean case, where the defense argued that so
much money was offered, it was impossible to turn it down."

The defendant who uses entrapment as a defense must prove he or she was not
predisposed to committing the alleged crime.

"The prosecution may show that the defendant did this before, that there
were discussions about it, he was knowledgeable about it, really reveled in
it somewhere perhaps in electronic surveillance," Johnston said. "Anything
that will show the defendant was predisposed to committing the crime and
that the agents simply provided the opportunity."