Complete Good Faith

“The special agents acted in complete good faith,” Mr. Mulham said, “with the purpose of pursuing appropriate law enforcement interests.”

Of course, what Charles J. Mulham, spokesman for the Bureau of Alcohol, Tobacco, Firearms and Explosives, was talking about was cops and agents lying to United States District Court Judge Alvin Hellerstein in order to get the bad guy while protecting the identity of a snitch. It's not that they didn't fabricate a story to get the job done, but they did get the bad guy, and isn't that all that really counts?

From the New York Times, a garden variety gun possession case in uptown Manhattan, which was being prosecuted in federal court because they have so little else to do and Article III judges need to spend their days on routine "felon in possession" gun cases, ended up "a flash point over legal ethics and a sharp dispute between a judge and federal prosecutors."

“A decision was made to coordinate among all the witnesses not to tell the full truth,” the judge said after he heard testimony from the arresting officers and from federal agents who helped to prepare a complaint against the man who was stopped, Tajuan Simmons, or who later testified before a grand jury.

Prosecutors in the office of Preet Bharara, the United States attorney in Manhattan, strongly defended the officers’ testimony as truthful and accurate; they asked the judge to withdraw his findings, citing the potential damage to the officers’ careers. The judge refused.

Just at the start of the story, and already too many ironies to ignore. First, that there was hanky panky at all came out because an AUSA spilled the beans:

Last fall, before the suppression hearing began, a prosecutor told the judge that the government had informed the defense about some recently discovered “misstatements” in the complaint.

We might scoff at the word "misstatements," since they would be more likely characterized as bold-faced, disgraceful, outrageous lies, if they came from a non-LEO's mouth or hand, but that's just a matter of rhetoric. Had the assistant said nothing, the lie would have gone completely unnoticed. And yet the same office, if not the same assistant, argued with a straight face that "misstatements" magically turned "truthful and accurate" when it came time to salvage these fine law enforcers' careers.  After all, why ruin a fine career by calling a cop a liar just because he's, well, a liar?

The details underlying this scheme are remarkably understandable. The call came in from a Confidential Informant, a rat busted for drugs who was flipped to save his own skin. He was told to stop committing crimes, but he didn't. Bad boy, he was told, but that didn't stop him from giving people up or the cops from working him.

The sergeant testified that he received the informant’s call around 11 p.m. on April 17, 2012, and after hearing his information, told him to dial a police hot line that offers callers anonymity and financial compensation for information about illegal guns; a hot line detective then called the 911 operator.

Two days later, when the complaint was sworn before a magistrate judge, it omitted any mention of the informant and said merely that “an anonymous individual had placed a 911 call” with the information about Mr. Simmons. Sergeant Nicholson said he had taken this step to protect the source.

It's not that they cared whether the snitch lived or died per se, but they weren't done squeezing him yet, and he still had plenty of juice. Once the CI gave up all he had, well, then his protection isn't nearly as much of a concern. But I digress.

The complaint had also stated that Mr. Simmons, when he saw the police, immediately began to run to the north. “He did not run,” the prosecutor said.

Finally, Officer Matthew Barber, who had seized the gun and arrested Mr. Simmons, now recalled that he saw “a bulge” in Mr. Simmons’s waistband — a detail that had not been in the complaint.

Except none of this happened, and it was all part of a scheme to justify the arrest while omitting the snitch's involvement. Not a big scheme. Not a sophisticated scheme to nail either a major bad dude or some innocent who made them angry. Just a banal scheme so that the CI wouldn't be involved.  And what was the big deal, since Simmons really had the gun? No harm, no foul.

Asked by the judge whether that was a practice of his office, the agent responded that if there was other evidence that established probable cause for an arrest, and “you do not have to risk the safety of an informant by exposing them, then you try to do that if possible.” (The identity of the agent is being withheld at the A.T.F.’s request because he remains involved in undercover work.)

Judge Hellerstein said the agent was “shading the truth” in not telling the magistrate judge about the informant.

The agent responded, “It’s a safety concern.”

Judge Hellerstein called it "nonsense," "not credible," "false" and "not worthy of belief."  So...

Nonetheless, he ultimately refused to suppress the gun, finding that the informant’s tip had been accurate. Mr. Simmons pleaded guilty to a conspiracy count, and in March he was sentenced to five years in prison, the maximum.

Didn't I tell you the guy actually had the gun?  Just because the witnesses for the government at the suppression hearing lied through their teeth about everything along the way to everyone they could, and the government backed them up despite having been the party to reveal to the judge that he had been reduced to a pawn in their scheme to excise the snitch from the case while still getting Simmons, that would never serve as a reason not to get the bad guy. 

Because, as the cops say, the agents say and the judge found, no matter how many lies or scams law enforcement has as the means to get to the end, it's all in complete good faith.

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