Every once in a while, some enterprising law enforcement officers come up with what they perceive to be a bright, no brilliant, idea. This happened to Monroe County Sheriff’s Detectives Doug Brannon and Pat Henry, and it was, as Radley Balko says, a whopper.
On May 7, 2009, the defendant’s appointed counsel filed a motion for a continuance on the basis of her discovery that a member of the Monroe County Sheriff’s Department had represented himself as two separate attorneys, had pretended to handle parts of the defendant’s case on the defendant’s behalf, and had instructed the defendant to cease communication with appointed counsel. Counsel noted that she had previously requested a mental evaluation of the defendant in January 2009 on the basis of his claiming to be represented by a “federal” attorney. One week later, citing the same grounds, counsel filed a motion to dismiss the indictments in all four cases on the basis that the State had inappropriately interfered with the defendant’s right to counsel.
This comes from the Tennessee Court of Appeals in State v. Dawson. The detectives went into the jail, using the aid of a jailhouse snitch, and persuaded the defendant that one was a “federal” lawyer (which in jailhouse parlance means “big time”), that he could fix his case and that the defendant should stop cooperating with his appointed (read, “worthless”) lawyer.
But for one detail, you’ve got to admit it’s a great scheme. It allowed them to get the defendant to admit everything in the world while preventing his real lawyer from intervening. Then, of course, there’s that nasty detail, the interference with the defendant’s right to counsel. Oh yeah. That.
[T]he conduct of the law enforcement officers in this case, and in particular Detective Henry, is so egregious that it simply cannot go unchecked. That Detective Henry would illegally pose as an attorney and arrange the circumstances of the defendant’s case to make it appear as though he had successfully undertaken legal representation of the defendant is abhorrent. That the detective would specifically instruct the defendant not to communicate the relationship to his appointed counsel, in what we can only assume was an effort to enlarge the time for the detective to gain incriminating information from the defendant, renders completely reprehensible the state action in this case. Given the unconscionable behavior of the state actors in this case and the fact that the defendant was essentially prevented from proving prejudice through no fault of his own, we have no trouble concluding that the only appropriate remedy in this case is the dismissal of all the indictments.
All things considered, it worked out pretty well for Dawson, all indictments being dismissed. And it was, brilliance notwithstanding, incredibly egregious. Which makes Balko’s question a pretty good one: Why didn’t anyone else who knew what these detectives were up to share in the responsibility for this outrage?
According to KnoxNews.com, Monroe County Sheriff Bill Bivens and DA Steven Bebb had some knowledge of the ruse, but did nothing to stop it.
During a hearing on the issue, Sheriff Bivens testified that he was vaguely aware of Henry’s plot and did not see “a problem with it,” adding, however that “if it’s illegal, of course, I don’t want to do it.” Bivens did not order a probe of Henry’s actions or take any disciplinary action; nor did Bebb initiate charges of impersonating a lawyer.
Instead, Bebb successfully persuaded Judge Reedy to overlook it all.
Of course, if responsibility flowed uphill, it would prove awfully hard to keep a full complement of top echelon sheriffs around. Still, Sheriff Bivens’ equivocation has to warm even the hardest heart, as he would never do such a thing “if it’s illegal.” Can’t blame him for trying, though.
While this bizarre and extreme effort to undermine the defendant’s constitutional rights in order to obtain evidence against him was ultimately thwarted, it reflects a deeper problem that keeps popping up in the most odd, and ordinary, places. In the zeal to enforce the law and convict the bad guys, there appears to be no bar below which some cops won’t go.
It may well be that Sheriff Bivens didn’t appreciate just how absurdly wrong and unconstitutional the efforts of his detectives were. Constitutional acumen isn’t necessarily a critical qualification for the sheriff’s job. Of course, that doesn’t alleviate the good sheriff (or the district attorney) from his responsibility to protect and defend the Constitution. If he’s not terribly clear about what’s allowed, there are no doubt people he could ask about it, such as DA Bebb. And if DA Bebb gives his thumbs up, as opposed to merely trying to salvage the cops from responsibility for their outrageous conduct after the fact, we have a separate, deeper problem.
Circumvention of constitutional rights is almost a game played by all law enforcement officers (think Reid Technique to get defendant’s to talk despite being given their Miranda warnings), and is encouraged by the courts who have approved (see Whren) deception as a legitimate law enforcement technique. Where does it end? Which lie goes too far, when others are embraced and excused by the courts, despite being every bit as deceitful and cleverly designed to make an end run around the defendant’s constitutional rights.
It would certainly behoove law enforcement officers who think they’ve come up with a novel, brilliant scheme to beat the Constitution and get their hands on information they would otherwise never be able to get, to ascertain whether it’s permitted before engaging in their scheme. It would be far more effective, however, if all the way down the line, from cops to courts, the law stopped giving approving recognition to lies, schemes and scams used to investigate and prosecute criminals.
And as a side effect, maybe it would prove beneficial for those accused of crimes to lean that the government isn’t a bigger liar, schemer and scammer than they are. Just saying.