COLUMBIA — Missouri prosecutors advising police on undercover investigations or overseeing such stings now have greater legal protection that their conduct won't violate ethical rules.
A July 2012 change to the Missouri Supreme Court's Rules of Professional Conduct explicitly allows government lawyers to collaborate on undercover operations without risking sanction for professional misconduct. Those ethics rules forbid "dishonesty, fraud, deceit or misrepresentation."
The amendment further codifies a law enforcement tactic that former Cape Girardeau County prosecutor Morley Swingle calls "the oldest trick in the criminal investigator's book" — lying to a suspect to help coax a confession.
"Deceit has been an investigative tool from the very start," said Swingle, now an assistant U.S. attorney in Cape Girardeau. In Missouri, such tactics have been upheld by the state Supreme Court for more than a century: an 1881 high court ruling cited a prison officer's "artifice, cunning, falsehood and deception" while drawing the line at lies that would cause an innocent person to falsely confess.
Missouri is among 10 states to make similar revisions to its conduct codes for lawyers following a 2002 Colorado case in which a prosecutor's law license was suspended after he posed as a public defender to elicit a murder confession from a suspect who asked police for a lawyer. Those states are Alabama, Alaska, Florida, Iowa, Ohio, Oregon, Tennessee, Utah and Wisconsin.
The legally protected acts of deception would typically be committed by officers rather than directly by prosecutors. But since prosecutors can be held accountable for misconduct committed under their supervision, the absence of such protection in the previous code could have created a chilling effect, Swingle said.
Columbia defense attorney Dan Viets, who frequently represents defendants in drug cases, said prosecutors and police often take advantage of the wide legal latitude to deceive. He cited the "classic example" of telling a suspect that another defendant has already confessed to the crime and named the first defendant as a culprit.
"So many people will come in and make a confession based on that lie," Viets said. "It's not at all clear where the line is drawn."
Viets cited a pending case in Callaway County in which he said an undercover police officer sold crack cocaine to an addict.
"This officer admitted to the same crime my client is charged with, in order to set up my client," said Viets, who has asked the judge to suppress that evidence. "It's kind of breathtaking."
Swingle outlined the new conduct rules in a recent newsletter article for the Missouri Bar, the state's association for lawyers. Titled "Big Lies and Prosecutorial Ethics," the article reminded its members of the numerous acceptable "law enforcement whoppers," from false statements that a suspect's fingerprints were found at a crime scene to made-up eyewitness statements, gunshot residue and lie detector test results.
Platte County prosecutor Eric Zahnd, president of the Missouri Association of Prosecuting Attorneys, reiterated Swingle's views that deceit is a "tried and true tool in a criminal investigator's toolbox" — while emphasizing that such tactics serve a greater purpose.
"Obviously, what we're always looking for is to get to the truth of what happens," he said.