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Narcs in Oregon

Thanks to a pair of bizarre, after-the-fact stories filed by
writers for the Los Angeles Times and the Associated Press,
DRCNet has learned that for a brief moment the citizens of Oregon
breathed slightly more free, secure in the knowledge that no
undercover agents lurked in their midst -- if they were even
aware of that fact.
That moment has passed, as quietly as it
existed.

And thus the strange press reports. The two stories, published
on July 18 and July 30, accurately described the situation that
had existed in Oregon since last August, when the state Supreme
Court, in a case involving a lawyer in a civil matter
misrepresenting himself to potential witnesses, ruled that all
lawyers must abide by the state bar's rules against dishonesty,
fraud and misrepresentation. In a stunning move, however, the
court made no exemption for state and US Attorneys, ruling that a
prosecutor who encourages an undercover police officer or
civilian informant to lie or behave deceptively is in violation
of the state bar ethic's code and subject to sanctions.

Oregon law enforcement officials as well as FBI spokespersons
wailed and gnashed their teeth for the reporters, bemoaning the
way the curious state of affairs hamstrung their vital undercover
operations. "I am a drug cop. Please sell me some heroin.
That's literally what's required," an Oregon district attorney
told the LA Times' Kim Murphy. FBI spokeswoman Beth Ann Steele
must have been reading the same script. If the agency wanted to
arrest a drug dealer, she told AP's Terrence Petty, "we'd have to
walk up and say: 'I'm an FBI agent. Here's $10,000. I'd like to
buy some coke.'"

The US Attorney's office in Portland told the AP it had suspended
some undercover operations and not approved new ones for fear of
state bar disciplinary action. "I consider this the single
greatest challenge as US Attorney in Oregon," acting US Attorney
Mike Mosman told the AP.

"People in this state are not getting the protection they're
entitled to," FBI special agent in charge Philip Donohue warned
the LA Times. Portland Police Bureau drug and vice officer Lt.
Gary Stafford chimed in as well. "The federal agencies are now
not willing to look at our cases if they involve any kind of
undercover activity," he told the Times. "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."

One small problem. The complaints and the news stories refer to
a state of affairs that ended three weeks before the first story
appeared, when on June 28 Gov. John Kitzhaber signed into law
House Bill 3857, "an act relating to attorneys for public bodies;
and declaring an emergency."

The bill restores the ability of state and federal prosecutors to
employ narcs. Or, as the bloodless language of the new law puts
it, state and federal prosecutors -- and only state and federal
prosecutors "[m]ay provide legal advice and direction to the
officers and employees of a public body... or... of the federal
government, on conducting covert activities for the purpose of
enforcing laws, even though the activities may require the use of
deceit or misrepresentation; and [m]ay participate in covert
activities that are conducted by public bodies... or... the
federal government for the purpose of enforcing laws, even though
the participation may require the use of deceit or
misrepresentation. (The full text and legislative history of the
bill, which was passed by the House on June 4, the Senate on June
14, and signed by the governor on June 28 -- is available at
 http://www.leg.state.or.us/01reg/measures/hb3800.dir/hb3857.en.html
online.)

So what's with the time-warped news stories? DRCNet has no
definitive answer, but some hints may lie in a brief mention in
the LA Times story of the McDade law, a federal provision unknown
to most Americans, but one that has driven federal prosecutors
into fits of extreme pique. In a curious inversion of reality,
the Times' Murphy wrote: "Although the Justice Department always
has required its lawyers to abide by individual states' ethics
rules, a controversial federal law passed in 1999 known as the
McDade law makes it explicit."

Well, not quite, and one must wonder whose perspective informed
Murphy's vision. The law, named after former US Rep. Joseph
McDade (R-Pennsylvania), was a response to eight years of
investigations into McDade's activities by federal prosecutors,
as well as numerous other allegations of prosecutorial misconduct
by US Attorneys. In a move that flabbergasted the Justice
Department, US Attorneys everywhere, and establishment pillars
such as the Washington Post, Congress in 1998 passed the McDade
bill, forcing federal prosecutors to abide by state bar ethics
codes in the states where they practiced. Contrary to Murphy's
version, the bill was passed precisely because US Attorneys would
not abide by state ethics codes unless required.

While congressman after congressman got up to address abusive
practices by US Attorneys (colleagues referred to McDade's
"persecution" by prosecutors who made up rules as they went
along), then congressman and now DEA chief-in-waiting Asa
Hutchinson denounced the bill. "This is a law enforcement
issue," he told Congress. "This would jeopardize our fight in
the war against drugs. The winner would be the drug cartels,
fraudulent telemarketing operations and Internet pornographers."

These two news stories would appear to be, at least to some
degree, an opportunity for feds still fuming over McDade's
strictures to bash their old nemesis by showing how having to hew
to those pesky state bar ethics codes makes the world safe for
all sorts of nefarious villains. Fortunately for the distressed
lawmen, their friends in the Oregon legislature have already
resolved that problem.

Jesse Barton is Chief Deputy Public Defender for the Oregon
Public Defender's Office and is also a member of the State Bar
Criminal Law Section Executive Committee, which worked for months
to craft a compromise position acceptable to defense lawyers and
civil libertarians on one hand and federal and local law
enforcement officials on the other. The committee's work was
rendered moot by the legislature's action allowing prosecutors to
be involved in "covert activities."

"This bill has probably been in effect since at least June 8,
because of its emergency clause," Barton told DRCNet. "The bar
committee had taken an amendment that would have overruled this
restriction on misrepresentation to the state Supreme Court, but
the court unanimously rejected it. We were happy to work with
bar members to come up with an amendment the court would accept,
but instead the bar association went to the legislature and came
up with HB 3857. This is not an even-handed bill."

Barton grew more animated, the constitutional lawyer within
starting to stir. "The fun is just beginning," he said. "There
are at least two ways to attack this law. First, the Supreme
Court has ruled that relations between opposing lawyers must be
reciprocal, and this law, which gives only a certain class of
attorneys -- prosecutors -- an exemption from the ban on
misrepresentation, is not reciprocal. This is arguably
unconstitutional as an equal protection violation," said Barton.

"There are also separation of powers issues here, with the
legislature overriding the state Supreme Court," Barton added.
"This is ripe for at least two constitutional attacks. Also,
defense lawyers should be trying to ferret our whether any facts
obtained by the state were in violation of the court's rule while
it was in effect. I'm going to do everything I can to make
defense lawyers aware of this issue."