Undercover law enforcement officers from local and federal Northeast Georgia agencies recently have netted arrests by posing as poachers, drug dealers, militia members and 15-year-old girls.
Such investigative tactics often rankle the targets, who claim a pure mind was pushed to criminality by an officer, alluding to the legal concept of “entrapment.”
But that’s a legal defense far more difficult to prove than perhaps it’s often construed, legal experts said.
“The government can stick any amount of meat in front of your nose and even have you open your mouth, but you’re the one who chooses to bite,” Circuit Defender Brad Morris said.
Georgia criminal code says that a person is not guilty of a crime if entrapped. Entrapment occurs when the idea and intent of committing a crime originated with a government officer, employee or agent who has additionally by “undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.”
In decades of practice, Morris said he has never seen an effective entrapment defense.
“Entrapment technically is a defense. It just hardly ever works,” he said.
In federal court, a defendant can deny committing a crime and simultaneously argue he was entrapped into committing a crime, Assistant U.S. Attorney William McKinnon said. The burden is on the defendant to provide such evidence.
“If the defendant is unable to make that showing in the trial, then the defendant is not entitled to an entrapment instruction with the jury,” McKinnon said. “The trial judge decides whether there’s a minimum amount to even raise it with the jury.”
An entrapment instruction was requested in the trial of two Toccoa men convicted Jan. 17 on domestic terrorism charges, McKinnon said. U.S. District Court Judge Richard Story did not find sufficient evidence that an undercover agent had persuaded the men to conspire to make ricin with castor beans.
Yet Georgia code doesn’t allow defendants to both deny their conduct and assert entrapment, or essentially the “I didn’t do it, and if I did, I was entrapped” defense.
Russell Gabriel, a law professor at the University of Georgia, said entrapment is somewhat analogous to self-defense in that sense.
“They are both what are called affirmative defenses,” Gabriel said. “You have to admit the deed, but this is a legal excuse for having done it, and those are jury questions.”
Hall’s District Attorney Lee Darragh said the affirmative defense aspect makes it a burdensome claim for a defendant.
“In our circuit, the defense is sometimes raised, but is rarely successful, mostly because the evidence is clear that the defendant seeking to use the defense was predisposed to commit the crime in the first place,” he said.
He cited investigations that have resulted in charges including enticing a child for indecent purposes and obscene Internet contact with a child.
“An example, without reference to any particular case, would be an offender responding to a law enforcement officer’s suggestion in a chat room that he is a child under 16 looking for sex and the offender responds to that suggestion, and is willing to meet with she who he believes is underage for the purpose of sex,” he said. “In those instances, it was readily seen that the offenders were predisposed to commit the crime in the first place and the officers involved just provided them the opportunity.”
He said going further, beyond the ethical issues raised, is a waste of time.
“To actually try to entrap someone who was not predisposed to commit the crime in the first place would be a waste of time and has ethical implications,” Darragh said. “The innocent needn’t be concerned about being ‘entrapped.’”
Gainesville Police Department Cpt. Carol Martin agreed that ethics and good use of resources are keys to good police work.
“It’s about integrity,” Martin said. “There’s enough people doing criminal acts that you do not have to entrap someone to make a case against them.”
Training on proper tactics and procedure is ongoing from the time an officer starts his career, Martin said.
“We have standards; we have policies and procedures, and officers do not want to tarnish their reputation by entrapping someone who might have otherwise not committed a crime,” she said.
Prosecutors and investigators are collaborative and consult when needed, especially on major cases.
“They are constantly on the phone with the district attorney’s office, the solicitor’s office, consulting on how can we help each other to make sure everybody’s rights are protected,” Martin said.
“I’ve been here for 27 years, and I would never want to put someone in jail because I set someone up. We’re not here for that.”
McKinnon said collaboration and oversight between agents and attorneys is why entrapment claims are rarely successful, with prosecutors screening for “substantial issues.”
“If we believe that entrapment would be a realistic defense, we have the discretion not to proceed,” McKinnon said. “In every case we indict, there’s a consideration of the likelihood to gain a conviction.”
While it might be tough to convince a prosecutor or judge that law enforcement was in the wrong, some times jurors find that defense themselves, Morris said.
“Maybe I’ve had equitable entrapments before. By that, I mean cases where somebody might be guilty but the jurors are just so irritated by the government conduct of thinking it up and all that sort of thing, and usually it’s cases where there wasn’t such an egregious scenario as far as victimhood is concerned,” Morris said. “Jurors ultimately decide whether they want to convict or not.”
McKinnon said that concept, called jury nullification, would be an “improper” argument to make directly to jurors.
“In federal court, juries don’t have the authority to essentially render what should be a guilty verdict,” he said. “The jury is under oath to render a true verdict according to the law in the evidence, at they’re not at liberty to ignore the law and the evidence and ignore their instructions.”