And for as long as we can remember, we thought that was dumber than dirt.  The first time we heard this, back in our dim and distant teens, we imagined something like this:

It just made no sense.  And, of course, it’s simply not true.  No undercover cop is ever going to jeopardize his investigation or his safety by admitting to the fact that he (or she) is a cop.  And there is no rule anywhere that says they have to.

But even so, this myth has persisted.  We can’t count how many cases we’ve dealt with where the suspect asked an undercover if he was a cop, the undercover said no, and that was apparently good enough.  You’d think that, after suspects keep getting arrested anyway, word would get out that undercovers don’t have to admit the fact.  It seems like important information, something that would quickly become common knowledge among people who have a reason to care about such things. 

It’s not just lying about being a cop, by the way.  Cops are allowed to lie about anything.

Let’s repeat that: The police are allowed to lie to you… about anything.

The most common example of this is police interrogation.  The cops are allowed to use any deception they like, in order to get a confession. 

For example, they can tell you your partner’s being interrogated upstairs, and just confessed, so you’d better come clean if you know what’s good for you (when they haven’t even arrested your partner yet.)  They can say the victim told them you did it before she died (when she’s actually still alive, and never said anything of the sort).

The biggest lie (and one that works all the time) is that this conversation is strictly off the record.  “Just between you and me.”  Nothing you ever say to a police officer is ever off the record.  If it can be used against you, it will.

The second-biggest lie (also one that works all the time) is that, if you come clean, the officer will make sure you get treated leniently.  He’ll make sure the DA gives you a lighter charge.  He’ll put in a word with the judge to make sure you get off with a lighter sentence.  He’ll only arrest you for the misdemeanor.  Complete horseshit, of course — that cop’s going to make sure you go down for whatever it is you just confessed to — but it works all the time.  People cut their losses, seeing themselves in a hopeless situation, and grasp at the opportunity to at least minimize the bad.

Oh, and if you think innocent people don’t do that too, then you’ve got another think coming.  Innocent people do confess to crimes they didn’t commit, for a variety of reasons.  (That’s a subject for a whole nother myth.)  And lying cops is one of the big ones.

And the cops are completely within their rights to lie this way.  Unlike prosecutors and judges, who have professional ethics to comply with, the police are allowed to use whatever lawful tools they have in order to solve a crime.  It’s not against the law for them to lie.  They’re allowed to.

And so they will.  They’re trained to do it.  They’re supposed to do it.  They’re gonna do it.

You’ve been warned.

“Why is this case here, except as an opportunity to upset Melendez-Diaz?”

So wondered Justice Scalia during oral argument a couple weeks back in the case of Briscoe v. Virginia. For some background, see our previous post on this case here. Briefly, the Supreme Court held last year in Melendez-Diaz v. Massachusetts that, in a drug case, the prosecution cannot prove the existence of a controlled substance by merely introducing the lab report — the chemist has to testify, or else the Confrontation Clause is violated. There was a huge outcry from prosecutors’ offices across the country. It would be too much of a burden to get chemists to testify at every drug trial. There was a concerted effort to get around this new ruling, or better yet to get the Supremes to reverse themselves.

So in Briscoe, Virginia tried to get around the rule by saying the prosecution only needs to introduce a lab report, and if the defense wants to confront the chemist then the defense can subpoena the chemist as a witness.

More than half the state attorneys-general filed an amicus brief, arguing that the expense and administrative burden of getting chemists to testify at trial would just be unworkable. At oral argument on January 11, it sounded like Justice Alito, at least, was buying into that argument (Tr. at 16, lines 16 to 18). And there was hope that Justice Sotomayor would be that one extra vote to undo Melendez-Diaz.

In our previous post, we pointed out various reasons why such hopes weren’t based in reality, and why the claims of expense and burden don’t hold water. We seriously doubt that anyone at the Supreme Court bothers to read this blog. But these observations are fairly self-evident, we think.

So it was no surprise to see a one-sentence smackdown from the Supreme Court this morning:

We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009).

It is so ordered.

In other words, if the states do not put the chemist on the stand in the People’s case, then they violate the Confrontation Clause. End of story. Bureaucratic convenience does not trump individual rights.

As for all those prosecutors’ offices who whine that it can’t be done? We’d ask them to look at New York City, whose courts are far busier than theirs ever will be, and who nevertheless manage the job as a matter of routine. Defense counsel often stipulates to the substance being what it is, and when there is no stipulation then getting the chemist to court is no more challenging than any other police employee who’d rather not be there. It’s just part of the job, and amazingly enough it works out just fine.

Not again. It looks like yet another instance of federal prosecutors exercising terrible judgment.

Writing for a unanimous Supreme Court this morning, soon-to-retire Justice Souter clarified what “facilitation” means in criminal law. A buyer calling up a drug dealer to arrange the purchase of some drugs does not count. Apparently, the feds didn’t get the memo.

In this case, Abuelhawa v. U.S., Mohammed Said was a suspected drug dealer whose phone was wiretapped. The wire intercepted six calls from a buyer, Salman Abuelhawa, in which Mr. Abuelhawa arranged two small purchases of cocaine.

The amounts Mr. Abuelhawa bought were strictly misdemeanor level — just one gram each time. But in a bizarre move, the feds charged him with six felony counts of “causing or facilitating” the sales during those intercepted phone calls.

After recovering from the “you’ve gotta be kidding me” stage, Abuelhawa moved to dismiss those charges. But no, the District Court (the Eastern District of Virginia, in Alexandria) said it was perfectly proper to charge a buyer with facilitation of the sale. He was convicted, and appealed to the Fourth Circuit.

The Fourth Circuit also ruled that it’s fine to charge a buyer with facilitation, saying that the word “facilitate” should be given its common meaning, “to make easier or less difficult, or to assist or aid.” Abuelhawa’s request to buy “made the sale possible,” and therefore counted as facilitation.

Ably represented by Joseph McEvoy, of the excellent Virginia law firm of Odin, Feldman & Pittleman, the defendant took it to the Supreme Court.

Writing for the majority, Justice Souter essentially opined “you’ve gotta be kidding me” — only in more genteel language. The government’s overly literal use of “facilitate” he described as sitting “uncomfortably with common usage.”

Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be odd to speak of one party as facilitating the conduct of the other. A buyer does not just make a sale easier; he makes the sale possible. No buyer, no sale; the buyer’s part is already implied by the term “sale,” and the word “facilitate” adds nothing. We would not say that the borrower facilitates the bank loan.

The feds argued that the facilitation wasn’t the request to buy, but rather the use of a cell phone to do so. A sale can happen without using a cell phone. Using a cell phone makes it easier to sell drugs. So therefore “Congress probably meant to ratchet up the culpability of the buyer who calls ahead.”

Souter respectfully pointed out that this argument was stupid. Congress made it a misdemeanor to buy the drugs. It meant for Abuelhawa to be charged with a misdemeanor. It did not mean him to be charged with facilitating the dealer’s felony.

* * * * *

We prosecuted drug dealers for years here in Manhattan, and we have to wonder what these Virginia feds were smoking. No prosecutor in their right mind would seriously consider charging a buyer with facilitation. A lookout is a facilitator. A steerer who directs buyers to a particular dealer is a facilitator. A “stash man” or a “money man” who holds stuff for the seller is a facilitator. The buyer is never a facilitator.

When, as here, a hyper-technical reading of the statute might conceivably result in a charge that nobody intended, a good prosecutor simply smiles wryly at the inept wording of statutes in general. But to actually file such charges would require a shocking lack of judgment.

Judgment. It’s something we require of our prosecutors. They have people’s lives, liberty and reputations at stake. They have victims who need justice. They work within a system that relies on them to do the right thing. So it is imperative that they have the uncommon sense to do, not what is technically allowable, but what is actually appropriate.

Not every prosecutor lives up to the challenge, of course. But lately the feds have been showing a remarkable lack of judgment. This case is just one of many in recent years where federal prosecutors have committed forehead-smacking acts of WTF.

So we have to ask… WTF? Seriously. Federal prosecutors have a well-deserved reputation for being bright, dedicated, hard-working and sensible. But in case after case lately, federal prosecutors have made colossal boners of bad judgment. What’s going on? Did we change how we hire people? Did the pool of applicants change? Did the internal culture change? We’d like to know.

Send us your thoughts, and we’ll see about devoting a column to the more thoughtful responses.

Although the nation of Sierra Leone has had an extradition treaty with the United States in effect since 1935, the African country has never complied with a single request for extradition. Until yesterday, that is.

Its government never complied with such requests, one might argue, because there really was no government to speak of. The country descended into failed-statehood shortly after becoming independent in 1961, with an almost totally non-functioning government. It was one of those unfortunate countries where, if you had to call someone in charge, nobody was going to pick up (embassy types would joke that it was because the officials were hiding under their desks from all the bullets flying around). During Liberia’s horrifying civil war in the 1990s, its warlord Charles Taylor took advantage of Sierra Leone’s instability to found a rebel group (funded with Sierra Leone diamonds, and manned with conscripted children) to launch a civil war in Sierra Leone. The corrupt government, which had no real resources due to a resultingly nonexistent economy, couldn’t do much to fight back. A brutal civil war ensued that raged throughout the 90s. A large Nigerian-led UN force finally intervened and restored peace, finally disarming the rebels in 2004.

Following the successful UN intervention, Sierra Leone has started to adopt the rule of law. Leaders of both sides of the war were subjected to UN war crimes tribunals. Democratic elections were held in 2007, and when no presidential candidate won a majority, rather than devolve into violence, the country simply held a runoff election. Important laws protecting public order have since been passed, and enforced.

So yesterday’s extradition is an important step in Sierra Leone’s process of joining the successful nations of the world, by complying with its treaty obligations under international law.

The case began in July of last year, when a cargo plane made an emergency landing at Lungui. The plane was found to contain military weapons and ammunition, as well as more than 600 kilos of cocaine.

Sierra Leone charged 15 people with importing cocaine, pursuant to the National Drug Ace of 2008, and related charges. The new criminal justice procedures were followed, resulting in a trial that ended on Tuesday. After the lengthy trial, Justice Mark Brown sentenced most of the defendants to 5-year jail terms and fines of $1 million.

Three of the defendants, Geraldo Quintana-Perez, Harvey Steven Perez and Alex Romero, were then immediately handed over to FBI agents at the Lungui airport, pursuant to the extradition treaty. All three were wanted in the United States on separate drug-related charges.

Quintana-Perez and Perez are to be arraigned today in the Southern District of New York. The SDNY’s acting U.S Attorney, Lev Dassin, remarked in a press release that “this is the first transfer of defendants from Sierra Leone. We hope that the transfer of these defendants to American custody marks the beginning of a strong partnership between the United States and Sierra Leone in combating the international drug trade, which poses a serious threat to both countries.” DEA acting Administrator Michele Leonhart added that “history is made today.”

The Minister of Information and Communication for Sierra Leone, Ibrahim ben Kargbo, stated that the prison sentences handed down by the Sierra Leone court will be respected by the United States, and that the jail terms for these three defendants will be served in U.S. prisons.

This truly is an important step in Sierra Leone’s journey towards modern statehood, with its government being beholden not only to its own laws, but also to its obligations under international law. The rule of law is perhaps the single most important requirement for a country to succeed, for its economy to prosper, and for its citizens to be protected. Without the certainty that the government will abide by the rules, that agreements will be enforced, and that rights will be protected, a country cannot thrive. Some other countries would do well to watch Sierra Leone’s rapid progress.

2009 New York Drug Sentencing Guide

What with all the drug law reforms happening in New York, we thought we’d put together a quick-and-easy guide to what they mean. Click here to view it in PDF form.

We used to do this all the time back when we were prosecuting cases with Special Narcotics. New York laws are so (unnecessarily) byzantine that a single chart really became necessary to figure out what they mean. We were often gratified to see nth-generation photocopies of our drug-law charts on various judges’ benches, and they were certainly popular in the office.

Standard warnings apply, of course: this is only a guide, and is not meant to be a substitute for legal research. And like everything else on this blog, it neither provides legal advice nor implies or creates an attorney-client relationship.