Juries just don’t like over-aggressive police enticing defendants into committing a crime.
Juries just don’t like over-aggressive police enticing defendants into committing a crime.
M aybe we should just call it the yuck! defense.
In fact, it is called entrapment. And it comes in a couple of importantly different varieties: There is the legal defense of entrapment, which defendants hate because it is so hard to prove. And then there is what a smart defense-lawyer friend of mine calls the “entrapment adjacent” defense, and what I’ve sometimes referred to as “equitable entrapment.” Prosecutors hate that one because it effectively puts the government investigators on trial, which can make for an ugly case if they’ve been too heavy-handed — more interested in incriminating people who are presumed innocent than investigating suspects who are actually guilty.
The entrapment-adjacent defense is used when an accused can’t prove he was entrapped as a matter of law, but hopes the jury will say, “Yuck!” That is, he hopes the jurors will be so offended by the aggressiveness of the police in enticing the defendant into committing the crime that they will vote not-guilty even if the evidence technically supports conviction.
As Rich Lowry and I discussed in The McCarthy Report podcast this week, the yuck! defense was on full display in the prosecution of four men for allegedly plotting to kidnap Michigan’s Democratic governor, Gretchen Whitmer. Last week, a federal jury in Grand Rapids acquitted two of the men outright, and hung on the other two (whom the feds insist they will try again).
The prosecution shows the dangers of the Democrats’ strategy to put criminal prosecutions in the service of their political narrative that “our democracy” is under a domestic-terrorist siege fueled by white-supremacism. In that sense, it mirrors the failed prosecution we spotlighted last weekend: the acquittal of Matthew Martin, whom the Justice Department irrationally over-investigated and over-charged for doing nothing more than being present on the scene of the Capitol riot.
Prosecutions can be theatrical, but they are not theater. They can feature prima-donna performances, but they are not congressional hearings. There are rules of evidence and procedure that get enforced. There is a judge there to correct participants who get out of line — and a court of appeals ready to correct a judge who fails to ensure that the rules are followed. A trial is not a passion play; it is an adversarial search for truth, in which the accused is presumed innocent and the government is expected to do justice — which does not necessarily mean its prosecutors should win (though that’s what it usually means if the prosecutors exercise sober discretion in their charging decisions).
Consequently, criminal prosecutions can predicate a viable political narrative only when the narrative follows from, and accurately reflects, the prosecution of criminal conduct that really does portend an ongoing threat to society. By contrast, when the prosecutions follow from the narrative — i.e., when political operatives hyperbolically maintain that there is an ongoing threat, and then expect that narrative to be borne out by a series of prosecutions undertaken in that politically manufactured atmosphere — then those prosecutions are apt to be overbearing. Jurors may well see such prosecutions as prioritizing political messaging over evidence. They may well conclude that the application of awesome, intrusive investigative authorities to behavior of dubious criminality, the peril of which has been exaggerated, is an abuse of power.
They may say, “Yuck!”
As a prosecutor for nearly 20 years, I dealt with many entrapment defenses. That’s not because I wasn’t busy enough with real crime and thus had to generate criminal cases to prosecute. To the contrary, I worked mostly against organized-crime groups, international criminal enterprises, and terrorist networks.
The activities of these confederations portend a continuing danger to the public. They thus get lots of government resources, enough to support the assignment of undercover agents and the recruitment of informants. Those government operatives are often tasked to infiltrate ongoing conspiracies. If they do that effectively, particularly by making covert video and audio recordings of criminal meetings (and sometimes of the crimes themselves), entrapment is the only game in town for defense lawyers. When the client is on tape, a “mistaken identity” defense is not going to get you very far.
So here is what I’ve learned about entrapment.
As a matter of law, entrapment is very hard for a defendant to prove. No matter how hard the police push, if the crime at issue is proposed by the suspect, not the undercover agent or informant, there is no entrapment defense. And that’s not the only legal problem for the defense. Even if the government operative proposes the crime, the entrapment defense fails if the prosecutor can prove the suspect was predisposed to commit it.
This second situation is very common. Let’s say an undercover agent infiltrates a Mafia family that is running a gambling ring in Queens, and then proposes that they open a second such ring in Brooklyn — at a site the FBI can covertly wire for video and sound. Or let’s say the DEA learns that a street gang is using an apartment in the Bronx as a drug den, so agents send an informant there, having him pretend to be a dealer who proposes to buy a kilogram of cocaine. No sensible person has a problem with such cases. No one thinks the FBI concocted the Gambino family or MS-13. The threat of ongoing, potentially violent crime from real criminal organizations, even loosely organized ones, is obvious. So is the fact that the most culpable, highest-ranking conspirators tend to be insulated and thus cannot be exposed absent undercover infiltration.
Basically, if prosecutors can establish that there truly is a threat to life and to the broader society, juries give investigators a wide berth. They will reject the inevitable “entrapment adjacent” defense because they will expect the police to be aggressive given the nature of the peril. They will expect the undercover agents and informants to push the conspirators hard, in order to identify other members of their criminal organizations, and to commit on tape the crimes they discuss in strategy sessions.
The yuck! factor comes into play when the claimed threat to life and society is questionable, when the crimes at issue are not terribly serious, and/or when the suspects appear to be sad sacks who are probably incapable of the grand schemes alleged. The yuck! factor is acute when, even if the suspects have arguably proposed the crime, the zest to execute the crime is overwhelmingly exhibited by the government operatives, not the suspects — when the evidence indicates that the suspects may just be big talkers while the undercover agents are the only real doers.
In my 1990s prosecution of jihadists, the overarching terrorist enterprise — which we charged as seditious conspiracy and conspiracy to conduct bombings — was premised on two schemes: the successfully executed plot to bomb the World Trade Center in February 1993, and an unsuccessful plot to bomb New York City landmarks a few months later.
The second plot heavily featured an FBI informant who was very aggressive. He did not propose the landmarks plot; that was done by a suspect who had been in the orbit of the WTC bombing plot but not operationally involved — and that suspect was motivated to propose the landmarks plot as vengeance against the U.S. government for imprisoning his friends and fellow jihadists, the WTC bombers. But even though the informant did not propose the landmarks plot, he did take on the guise of an explosives expert, arrange for a bomb-building safehouse, influence the plotters to use the safehouse to build the bombs they’d been talking about, and help them obtain explosive compounds and find sources for detonators.
Tellingly, the informant had infiltrated the jihadist organization before the WTC bombing, but the FBI prematurely ejected him from the investigation over a dispute about whether he’d be willing to testify. That removed the government’s window into the conspiracy; otherwise, we might have been able to prevent the WTC attack. In fact, it was the relationship that the informant had developed with the Blind Sheikh and his subordinates before the WTC bombing that enabled him to re-infiltrate the group afterward, thus thwarting the planned landmarks attack.
The second plot featured some sad-sack suspects and some shocking discussions about political kidnappings, jailbreaks, massive bombings, and overthrowing the United States government. In the abstract, no one would have believed these suspects capable of the atrocities they were discussing. Between that and the zealous exertions of the informant, I don’t know if we could have convinced a jury to convict them of the second plot standing alone. But of course, the second plot did not stand alone. The World Trade Center had already been bombed. There were sad sacks in that plot, too, and if you had seen them the day before they struck, no one would have thought them capable of what they pulled off.
The jury in our case did not look at the investigative aggressiveness and say, “Yuck!” They looked at a group of unabashed, anti-American jihadists who had carried out a heinous attack, in which their ambitions had been to kill tens of thousands of people. Though the terrorists succeeded in killing only a fraction of that number (and causing what would today be billions of dollars in property destruction), the jury understood that the bombing succeeded precisely because the FBI had failed to be aggressive enough while it had the good fortune of having infiltrated an informant into the jihadist conspiracy. In that context, the jury expected the investigators to be aggressive in the second plot — expected them to do what was necessary to prevent it from happening and nail all the plotters who could be identified.
By contrast, in the Whitmer case, the FBI and Justice Department (and their partners in state law enforcement) have tried to build a kidnapping prosecution on no foundation — no prior kidnappings or related violence, and no reason to believe the suspects would have tried to carry out so fantastic a scheme on their own, without being egged on by the government. The FBI involved so many undercover agents and informants that it must have seemed to the jury that they outnumbered the suspects said to be implicated in the plot. A bureau case agent appears to have leaked investigative information about the case; and the bureau’s main undercover was fired for allegedly beating his wife after they argued over a bizarre “swingers” escapade.
Yuck!
Many institutions in America appear to be crumbling before our eyes. One that is holding its own, though, is the jury trial. There are things about it that we should bear in mind when we address other challenges.
In the jury system, we do not leave important decisions to panels of experts. A defendant is entitled to a jury of his peers — a representative sampling of men and women from the community — to pass judgment: to convict the guilty but to protect the accused, and by extension the community itself, from abusive government. We let jurors hear expert testimony when it is needed to edify them about technical aspects of the case; but the experts do not instruct the jury — the jurors decide how much, if any, of the expert testimony is relevant, and they determine whom to believe when the experts offer conflicting testimony. There is no Dr. Fauci. There is no “scientific consensus” or blue-ribbon panel of technocrats. The community decides — ordinary people bringing all manner of life experience to jury service. No human system is perfect, but our jury system has the best chance of applying our collective wisdom to matters of great significance.
A signal aspect of our justice system is jury nullification. Ordinarily, trial judges do not tell jurors that they have the power to ignore the law and acquit the defendant, even if he may be guilty. The court does not spell out to jurors that they can send a strong message of disapproval about the government’s tactics, and about the blatant politicization of law enforcement. In fact, judges customarily advise juries that the defendant, not the government, is on trial, and that they should faithfully apply the law, as explained by the judge, to the facts of the case.
All that said, though, the jury does get to decide what the facts show, and what facts are dispositive. Jurors know they have the power to reject an unworthy case even if no one tells them that. And in our system, an acquittal is final — the government does not get to appeal a jury finding of not-guilty, even if the verdict does not technically square with the law and the evidence. Like it or not, the community gets the last word on whether the prosecution is a worthy one.
That’s why, in point of fact, the government is on trial in every criminal case. And in the entrapment scenario, the yuck! defense always has a chance if the government is playing politics rather than doing justice.