Saturday, December 17, 2016

Who Moved The CHEEZO? - Using Ethics Rules to Make the Internet Safe for Child Molesters

Cheezo, Mascot of the Child Sex Offender Internet Investigations Unit
Many Coloradans are waking up this morning wondering how criminal defense attorney Phil Cherner managed to shut down a highly successful Child Sex Offender Internet Investigations Unit using the Colorado Rules of Professional Conduct, which prescribe minimum ethical standards for Colorado attorneys.

Mike and Cassandra Harris, a married couple, developed the Child Sex Offender Internet Investigations Unit (“CSOII”), informally known as “CHEEZO,” in 2005.  Housed in the offices of the Jefferson County District Attorney, the Harrises and another investigator have posed as children online to engage, identify, and arrest pedophiles who use the World Wide Web as their stalking field. 

Since its inception, CHEEZO has made 924 arrests, 57 this year alone.  Getting Internet child predators off the streets is a good thing, right?  So who can blame the public for thinking that, if attorney ethics rules can be used to make the Internet safe for child molesters, surely “the law is a ass—a idiot.”

Few Colorado lawyers, however, will be surprised by this development.  Most will recall the extreme case of Mark Pautler (People v. Pautler, 47 P.3d 1175 (Colo. 2002)).  

On June 8th, 1998, Chief Deputy District Attorney Mark Pautler arrived at a grisly crime scene.  Three women lay murdered in an apartment, their skulls cleaved by blows from a wood splitting maul.  A short time later, a few miles away, a similar scene unfolded.  In a second apartment the killer, William Neal, had murdered a fourth victim in the same brutal manner in front of a fifth victim, who he later raped.  The fifth victim, together with two of her friends, were held hostage by Neal for over 30 hours. 
After recording the details of his rampage on tape Neal fled the apartment, leaving instructions with the hostages to call police and to have them page him when they arrived.  When Paulter arrived at this second crime scene Neal was in the wind, but on the phone – Deputy Sheriff Cheryl Moore kept Neal talking for three-and-a-half hours, hoping to negotiate his surrender before he struck again or disappeared entirely. 
William Neal, Convicted Axe Murderer
Neal told Moore he would not surrender without speaking to legal counsel.  Specifically, Neal asked to speak with a particular public defender, Daniel Plattner, who had previously represented him.  Plattner, however, could not be found – his phone was disconnected, and Pautler believed Plattner had left the practice of law.  Fearful that more deaths could be imminent or that Neal might escape, Mark Pautler decided to impersonate a fictitious public defender, "Mark Palmer," a name Pautler chose himself.  After speaking with “Palmer” and negotiating the terms of his surrender, Neal was taken into custody without further incident.

For his deception, Pautler was suspended from the practice of law by the Colorado Supreme Court.  Notwithstanding the extreme circumstances faced by Pautler, the court held “This rule and its commentary are devoid of any exception. Nor do the Rules distinguish lawyers working in law enforcement from other lawyers, apart from additional responsibilities imposed upon prosecutors.”

The problem for Pautler was that Colo. RPC 8.4(c) prohibits an attorney from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation,” even when not acting as an attorney.  Pautler was also found to have violated Rule 4.3, which provides that “In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.”

The problem for the Harrises, who are not lawyers, is that CHEEZO is housed in the offices of the Jefferson County District Attorney.  Colo. RPC 5.3(b) provides that “a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”  Thus, while law enforcement officers may lawfully use pretext as an investigative tool, and routinely do, a law enforcement officer operating under the direction of an attorney, much less a district attorney, may not.

The hardline approach taken by the Colorado Supreme Court, while not universally adhered to by all states, is not an aberration.  The same year the disciplinary complaint was filed against Mark Pautler, the Oregon Supreme Court considered similar conduct, this time involving a private attorney, in In re Gatti, 330 Or. 517, 8 P.3d 966 (Or. 2000). 

There, a private attorney misrepresented himself as a chiropractor during the course of an alleged fraud investigation.  The United States Attorney for the District of Oregon, appearing as amicus curiae, joined by the Oregon Attorney General, urged the court to recognize a “prosecutorial exception” which would exempt “government attorneys who advise, conduct or supervise legitimate law enforcement activities that involve some form of deception or covert operations.”  8 P.3d at 974-975.  The Oregon Supreme Court declined this invitation to create a judicial exception to the traditional view in absolute terms:

            As members of the Bar ourselves--some of whom have prior experience as government lawyers and some of whom have prior experience in private practice--this court is aware that there are circumstances in which misrepresentations, often in the form of false statements of fact by those who investigate violations of the law, are useful means for uncovering unlawful and unfair practices, and that lawyers in both the public and private sectors have relied on such tactics.  However, ORS 9.490(1) provides that the rules of professional conduct “shall be binding upon all members of the bar.”  (Emphasis added.)  Faithful adherence to the wording of DR 1-102(A)(3), DR 7- 102(A)(5), ORS 9.527(4), and this court’s case law does not permit recognition of an exception for any lawyer to engage in dishonesty, fraud, deceit, misrepresentation, or false statements.   In our view, this court should not create an exception to the rules by judicial decree.  Instead, any exception must await the full debate that is contemplated by the process for adopting and amending the Code of Professional Responsibility. 

Id. at 976.  (Underlined emphasis in original; other emphasis added.)

The Gatti case did in fact lead to such a debate, and to a rule change in Oregon.  Following the adoption of the Model Rules of Professional Conduct by Oregon, this exception was incorporated as Oregon RPC 8.4(b):

            Notwithstanding paragraphs (a)(1), (3) and (4) and Rule 3.3(a)(1), it shall not be professional misconduct for a lawyer to advise clients or others about or to supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer's conduct is otherwise in compliance with these Rules of Professional Conduct. "Covert activity," as used in this rule, means an effort to obtain information on unlawful activity through the use of misrepresentations or other subterfuge. "Covert activity" may be commenced by a lawyer or involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future.

(Emphasis added.)  The Oregon Rule does not allow an attorney to personally act as the undercover investigator, only to advise and supervise nonlawyers regarding covert activities.

The Oregon rule is refreshingly direct compared with the sometimes Rube Goldberg-like approach and the “then a miracle occurs” logic gaps often found in well-intentioned judicial opinions struggling to reconcile the inflexible prose of lawyer’s codes with the interests of justice and realities of the modern world.  It has the further advantage of involving, or at least not excluding, lawyers – who are and ought to be held to a higher ethical standard – from the tasks of advising clients and others about or supervising lawful covert activities.  American political experience has repeatedly demonstrated that covert activities have a propensity to run amok.  There is no reason to believe that excluding attorneys from advisory or supervisory roles will improve this situation.  Further, to the extent the Rules of Professional Conduct are rooted in public expectations regarding the legal profession, most of the public would be shocked to learn that lawyers may not supervise law enforcement officers in conducting pretextual investigations on peril of suffering professional discipline.

District Attorney Peter Weir
In contrast to Oregon’s Rule 8.4(b), Colorado’s Rules of Professional Conduct continue to admit no exception which would allow attorneys to supervise investigators conducting covert activities without risking prosecution by the Office of Attorney Regulation.  As District Attorney Peter Weir and the CHEEZO task force have learned, law enforcement officers who engage in pretextual investigations are on their own.  Perhaps the experience with CHEEZO will finally prompt a long-overdue debate regarding the roll of attorneys in overseeing covert operations by law enforcement in Colorado.