¶ … entrapment' and 'outrageous Governmental conduct'. Entrapment is usually permitted within confines of the law even though it contradicts the fourth and fifth amendments. It refers to entrapping the suspect into a situation where it is clearly seen that he was willing and ready to violate the law. 'Outrageous Government conduct,' on the other hand, refers to cases when the Government's conduct was so egregious that it provoked the accused into committing the transgression. Usually conducted out of undue zeal, particular Government official(s) can be egregious in their 'entrapment' conduct and generally, although not always, consequent in running afoul of the law.
The distinction between 'entrapment' and 'outrageous government conduct' is illustrated by the following fictitious case history, "Alabama vs. Billy Bob," where, on the grounds of 'Outrageous Governmental conduct', I appeal to the Judge to exonerate Mr. Bob.
There is no doubt in my mind that, firstly, Mr. Billy Bob was wrongfully convicted by 'entrapment' and secondly that Officer Joe Friday showed disgraceful conduct that actually could be categorized under "outrageous governmental conduct."
Regarding the first, Bob was under remarkable pressure to buy the drugs. He was in love with this woman, had been rejected by her time and again, and here she was not only evidencing an interest in him but was also inferring that were he to buy the drugs, she would sleep with him. This is tremendous pressure for a possibly lonely, lust-driven man to ignore. Note that he was apparently reluctant to complete the deal. He had agreed to do so only the occasions when Jane spoke to him, and we do not know the extent of Jane's persuasive character, nor how feeble a character Mr. Bob might possess, and that a weak man, under the stress of multiple other psychological elements might be all the more fallible to misdemeanor (particularly when rationalizing it). We infer Bon's reluctance to the deal from two facts: firstly he approached Friday only after an interval of 3 months had elapsed and secondly he failed to show up for a meeting that he and Friday had scheduled at the Fictional Bar to discuss the amount of cocaine that Bob might purchase. Indeed, it was only after Jane had urged him once again, this time enticing him with her body that Bob said he would be there immediately and that he would take her up on her offer. Notice that the two are linked: It was her body not the drugs that apparently drove him, and the fact that he had intoxicated himself might have been said to overcome his reluctance to the task. Most importantly, we do not know what he would have done with the drugs once actually bought. He might have intended to return them at the earliest opportunity. There are too many questions here and too many pointers indicating that Mr. Bob was unlawfully trapped by a corrupt member of the Law.
"Outrageous governmental conduct," too, can be proved beyond a shadow of a doubt.
Officer Friday's behavior is disgraceful and non-befitting for an Officer of the law. His conduct throughout is an excellent illustration of the 'slippery slope' committed by one who, starting off with morally questionable actions, leads one to carry on in that direction, possibly resulting in even worse transgressions. In Friday's case, they certainly did.
Firstly, we have Officer Friday's sexual conduct with Jane, an action that corrupts and demeans the law. The problem with this situation is that Friday, heretofore, has entered the 'slippery slope' route. His acceptance of her favors leads him to be biased towards the recipient (namely Jane in this case) that could lead to a situation of bribery in the future, and to a miscarriage of justice. According to Coleman (2004), it is very difficult to break away from the effect of the first act on the slope, which is why the first action should never be taken.
It would be hard for Friday now to remain unmoved by Jane and to distance himself from her opinions in general. He is inevitably biased, and therefore Mr. Bob who is apparently hounding Jane, at least according to Jane's description makes a wonderful suspect. Particularly is this so since Friday is under the reinforced pressure of making good of his promise that he was "developing promising leads." From this we see...
Billy Bob, were guilty of the crime in question. There was no evidence to support this allegation. The assumption merely rested on Jane's opinion and Jane was biased when it came to Bob. Friday now, having to convict one of his suspects, pressured Bob into completing the deal -- Friday twice put deceptive pressure on his girlfriend to persuade him to do so -- and Bob accordingly showed up and was arrested.
The fact that Officer Friday falls short of the law can be evidenced from further dishonest behavior: He had falsely informed his superiors that he had "infiltrated a drug ring." Such unlawful and corrupt conduct clearly delimits Officer Friday from practicing the law and points to outrageous governmental conduct. Some may excuse this deliberate duplicity of the law by pointing to precedents such as the Olmstead case which accused officers of violating the fourth and fifth amendments, but I refute that showing that two exceptions must made here. Firstly, that the Olmstead case was predicated on significant evidence. Many pointers indicated the possibility that Roy Olmstead was involved in bootlegging. The only issue now involved was in how to reveal this evidence. Secondly, no laws were violated in installing the wiretapping equipment as the officers, rather than breaking into the homes or offices of the defendants, placed the equipment in external locations.
This case, it is true, does more significantly represent the Lewis v. U.S. case (1966) where an undercover narcotics agent under false pretenses was twice invited to the home of the petitioner for the purpose of executing unlawful narcotics transactions. There too, petitioner was indicted and held guilty since it was stated that the government's use of decoys is not considered unlawful, and that the petitioner invited the agent to his home for the purpose of selling the narcotics. In this case, however, Mr. Bob was not invited; he was pursued after he had, on two previous occasions, shown clear reluctance to proceed with the transaction. He was clearly pressured, too by unlawful Governmental pressure and duplicity into completing the deal.
You, Honored Judge, might remember the Hoffa vs. U.S. case (1966) where petitioner Hoffa was convicted on the grounds that he had formerly bribed members of a jury to exonerate him. Hoffa was only convicted due to the fact that he had confided in Partin, a paid government informer. The Court of Appeals affirmed the convictions on various grounds, one of them -- that most relevant to this essay -- being that observation that Hoffa had complete trust in Partin: he had misplaced confidence in that Partin would not reveal his wrongdoings, and his conversations were entirely voluntary. Bob, on the other hand, was duped into this encounter with Friday. The transaction was, as all evidence indicates, utterly involuntary and the fact that he twice failed to show up indicates, if not lack of trust in Friday, reluctance to complete transaction.
These aforementioned precedents in which the defendant was convicted are, I acknowledge, unlike the Hampton vs. U.S. instance (1976) and the Russell vs. U.S. case (1973) where, on two separate instances, both Russell and Hampton were presented heroin by government informants and consequently convicted of federal offence, the petitioners appealed distinguishing between entrapment and between government outrageous conduct: it was the government, they claimed, that had seduced them to unlawful action. Their pleas were overturned on the grounds that the defendants had a predisposition to make and sell illegal drugs whether or not they worked with the government. Mr. Bob is being hounded on the whimsy of a barmaid.
Police brutality in the Rochin vs. California case where police deputies grabbed and squeezed Rochin's neck and shoved their fingers into his mouth in an attempt to elicit the morphine was condemned but not excused; defendant was, nonetheless, convicted as per California Health and Safety Code § 11500 for having an unlawful possession of morphine. Again similar to Bob's case in that undue force was implemented here, nonetheless, Bob never had the drug in his possession in the first place, nor do we know that he was intending to buy it. He was pressured into doing so, and the evidence clearly shows him to be reluctant.
Undue government pressure similarly compelled Mr. Jacobson (1992) into buying child-related pornographic material. The court overturned the conviction on the grounds that undue pressure was placed on the man to do so through repeated written entreaties. This, Judge, is what we can extract from that case: the prosecution failed to produce evidence that Jacobson was predisposed to violating the law, and more…
In fact, he repeatedly told officer Friday that he had no interest in doing so. In Sherman v. United States, the Court held that "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal." 356 U.S. 369, 375. Furthermore, in Sorrells v. United States, the decision that officially established the entrapment defense, the Court asked "whether the defendant is a