It was May, 2001, when congressional intern Chandra Levy disappeared and the rush to blame California Congressman Gary Condit was all over the papers.  Levy’s death is no longer on the front page, but as defendant Ingmar Guandique goes to trial for her murder, the prosecution still wants to get the win.  Badly enough, in fact, that they’ve been pulled some extraordinary shenanigans to obtain a confession.

From the Washington Post :

District law enforcement officers disguised themselves as a Latina woman and wrote letters to Ingmar Guandique while he was in a California prison, hoping Guandique would confess his involvement in the slaying of federal government intern Chandra Levy, defense attorneys revealed at a hearing Thursday in D.C. Superior Court.

“We don’t know if this action was hatched with the assistance of prosecutors or done by police alone,” [Santha] Sonenberg said. “Knowing [Guandique] had asserted his attorney rights and did not want to talk about it, is offensive.”

Using the name “Maria Lopez,” it appears that the police sent Guandique love notes.  What prisoner doesn’t enjoy love notes?  Lacking details, I envision scented paper, a pink pen and little hearts over the “i”s, the sort of thing that would make any prisoner’s heart leap with joy at the attention.  Nothing about the love notes suggested that it was written by a particularly muscular and hairy-knuckled hand. 

Nowhere amidst the hearts were the words, you have the right to remain silent.  No need for it, since he was already represented on the case and his rights had been invoked.  But there is no right to invoke against the love of a young woman.

Prosecutor Fernando Campoamor-Sanchez defended the letters and said the move was not “illegal, unethical or improper.”

He accused Sonenberg of providing “sound bites” to the six or so reporters in the courtroom. Campoamor-Sanchez said that the letters were permissible, but he did not say whether his office was involved in writing the letters.

The story fails to provide the rationale upon which the prosecution relies in support of its argument that it can circumvent the defendant’s 5th and 6th Amendment rights by pretending to be the hot and interested “Maria Lopez.”  Perhaps they are testing the shelf-life of Guandique’s invocation, per Maryland v. Shatzer, the arbitrary Supreme Court holding that it expires in 14 days.  Perhaps they are just true romantics, believing that love conquers all.  It doesn’t say.

Guandique’s lawyer, Santha Sonenberg, moved Judge Gerald Fisher to dismiss the first degree murder charge, which Fisher immediately denied, stating he would “review” the allegations to determine whether any action was warranted, but that the case was “going forward to trial.”  Despite the ruse, Guandique made no admissions to the nubile and willing “Lopez.”  No harm, no foul. 

And from the looks of things, no outrage by the judge nor shame by the prosecution.

It strains my somewhat fertile imagination to come up with a rationale that the prosecution believes would justify these actions.  Granted, I’m somewhat dogmatic about the use of a subterfuge to circumvent constitutional rights.  It’s a bad thing and they can’t do it, in my book.  Apparently, the prosecutor is reading from a different book. 

That Judge Fisher refused to toss the charge comes as no surprise.  Had the scam letters worked their magic, the appropriate sanction would have been suppression of the unlawfully obtained admission.  Since there was no admission, there is nothing to suppress.  But no judge is going to give a defendant a free murder because of a constitutional violation that failed.  Nor should he.

Yet that means that the prosecution has no incentive to not try to violate Guandique’s constitutional rights.  Get caught and the worst that happens is that you can’t use the unlawfully obtained evidence.  So what?  You didn’t have it in the first place, so losing it is meaningless.  Plus, you now know for sure that you’ve got the right guy (and it may just slip out into the media in case some potential juror is listening).  And if you don’t get caught, Bingo!

If we find it just a bit troubling that the police tried to reach out and touch Guandique in a particularly pleasant way, then there must be some remedy for what happened here.  Without a disincentive to give it a try, a penalty for the effort, if not the success, then there is no reason (internalized ethics aside) for prosecutors or cops to honor the constitutional rights for defendants. 

Don’t fret.  Judge Fisher is thinking about whether “any action is warranted.”