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October 24, 2008

Outrageous Government Conduct – Not Just for Drug Cases!


IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CRIMINAL DIVISION

 

People of the State of Illinois                             )

                        Plaintiff                                     )

                        v.                                             )           No. 05 CR 12718

Linda Shelton                                                   )

                        Defendant                                 )           Honorable Judge Kazmierski

                                                                        )                       presiding

 

 

MEMORANDUM OF LAW

OUTRAGEOUS GOVERNMENT CONDUCT DEFENSE

 

                NOW COMES, the Defendant, Linda L. Shelton, Pro Se who respectfully submits this memorandum of law as follows:

 

The Orphan Doctrine of Outrageous Government Conduct

Otherwise known as the criminal defense of

DUE PROCESS

Proof that it is alive and well in Illinois

The doctrine of “outrageous conduct,” sometimes referred to as “outrageous misconduct,” was introduced by the Supreme Court. In the course of discussing the entrapment defense, the Court speculated that:  “[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction ….” United States v. Russell, 411 U.S. 423, 431-32, 36 L. Ed. 2d 366, 93 S. Ct. 1637, 1643 (1973). The Russell court went on to state that in order to rise to the level of outrageous, the misconduct must be of such a nature that it violates “‘fundamental fairness, shocking to the universal sense of justice, mandated by the Due Process Clause of the Fifth Amendment.” Russell, 411 U.S. at 432, 36 L. Ed. 2d 366, 93 S. Ct. at 1643, quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 4 L. Ed. 2d 268, 80 S. Ct. 297, 303 (1960).

The outrageous-misconduct defense was further addressed by the Supreme Court in Hampton v. United States, 425 U.S. 484, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976). “Police involvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.”  Id. 1653 n.7

In Hampton, the defendant was convicted of distributing heroin, despite his argument that because the heroin had been supplied by a government informer and sold by the defendant to an undercover agent, the defendant’s due process rights had been violated. The Supreme Court affirmed the conviction but wrote three separate opinions. The plurality opinion found that neither the defense of entrapment nor the defense of outrageous conduct was available to the defendant because the defendant was predisposed to commit the crime. The plurality opinion stated, “If the police engage in illegal activity in concert with a defendant beyond the scope of their duties[,] the remedy lies[,] not in freeing the equally culpable defendant[,] but in prosecuting the police under the applicable provisions of state or federal law.” Hampton, 425 U.S. at 489, 48 L. Ed. 2d 113, 96 S. Ct. at 1650 (plurality opinion of Rehnquist, J., joined by Burger and White, JJ.). Two justices concurred in the result but refused to foreclose the possibility of the fundamental-fairness defense even where predisposition is shown. Hampton, 425 U.S. at 491-95, 48 L. Ed. 2d 113, 96 S. Ct. at 1650-53 (Powell, J., concurring, joined by Blackmun, J.). On the other hand, the dissenting justices believed that the behavior of the law enforcement officials was sufficiently offensive to bar a conviction. Hampton, 425 U.S. at 495-500, 48 L. Ed. 2d 113, 96 S. Ct. at 1653-55 (Brennan, J., dissenting, joined by Stewart and Marshall, JJ.). Accordingly, Hampton stands for the proposition that even though proof of predisposition to commit a crime will bar the application of the entrapment defense, fundamental fairness will not permit any defendant to be convicted of a crime in which police conduct is outrageous. See United States v. Twigg, 588 F.2d 373, 378-79 (3rd Cir. 1978).

            “The due process defense of outrageous police conduct was elevated from theory to reality in United States v. Twigg, 588 F.2d 373, 377 (3rd Cir. 1978). That court reversed convictions of two defendants, because ‘the nature and extent of police involvement … was so overreaching as to bar prosecution of the defendants as a matter of due process of law.’…  The State has argued that this due process defense…our [Illinois] supreme court has conclusively rejected…in People v. Cross, 77 Ill.2d 396, 33 Ill.Dec. 285, 396 N.E.2d 812 (Ill. 1979).  We believe that… Cross should not be interpreted as a bar to the due process defense.” People ex rel Difanis v. Boston, 92 Ill.App.3d 962, 416 N.E.2d 333, 336-337 (Ill.App. 4 Dist. 1981).

 

In People v. Ming, 316 Ill.App. 1274, 250 Ill.Dec. 412, 738 N.E.2d 628 (Ill.App. 5 Dist. 2000) the court extensively discussed the defenses of entrapment and outrageous government conduct, holding that the defense of outrageous government conduct exists in Illinois, even if it has never been successfully employed:

“…[T]he outrageous [government] conduct defense looks at the government’s behavior.  See United States v. Gamble, 737 F.2d 853, 858 (10th Cir. 1984).…  One circuit of the United States Court of Appeals has declared the defense dead (United States v. Boyd, 55 F.3d 239 (7th Cir. 1995))… First, we point out that decisions of United States district courts and courts of appeal are not binding on Illinois courts. See City of Chicago v. Groffman, 68 Ill. 2d 112, 118, 368 N.E.2d 891, 894 (1977). Second, it is noteworthy that Boyd dealt with prosecutorial misconduct, while the instant case deals instead with the alleged misconduct of an undercover drug agent. Finally, we disagree with the Boyd court’s holding that the doctrine is dead.  Contrary to the holding in Boyd, the fact remains that most jurisdictions at least acknowledge that such a defense exists.  For example, United States v. Mosley, 965 F.2d 906, 909 (10th Cir. 1992), cited cases from 11 circuits, all of which agreed that the defense of outrageous [government] conduct exist.” Ming. Id.

“One of the few cases to actually advance the defense of outrageous police misconduct from pure theory to reality is United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978), which is distinguishable from the case before us. In Twigg, a government informant suggested the establishment of a laboratory to manufacture ‘speed.’ The government supplied a chemical used to make the drug, made arrangements with chemical supply houses to provide the other ingredients, and provided the production site, and a government agent was completely in charge of the operation. Thus, Twigg involved an egregious case of government overinvolvement in which the government’s undercover operative essentially concocted and conducted the entire illicit scheme. The Twigg court characterized the police conduct as ‘so overreaching as to bar prosecution of the defendants as a matter of due process of law.’ Twigg, 588 F.2d at 377. In a footnote, the Twigg court stated:

 

FN ‘We are adhering to Justice Powell’s reasoning [in Hampton] that in evaluating whether government conduct is outrageous, the court must consider the nature of the crime and the tools available to law enforcement agencies to combat it.’ Twigg, 588 F.2d at 378 n.6.”

 

Ming. Id.

“The outrageous-conduct defense is distinct from the entrapment defense because while the entrapment defense looks to the state of mind of the defendant in order to determine whether he or she was predisposed to commit the crime being prosecuted (Jacobson v. United States, 503 U.S. 540, 118 L. Ed. 2d 174, 112 S. Ct. 1535, 1540 (1992)), the outrageous-conduct defense looks at the government’s behavior. See United States v. Gamble, 737 F.2d 853, 858 (10th Cir. 1984). The defense of outrageous conduct is premised upon the notion that the due process clause imposes limits upon how far the government can go in detecting crime irrespective of the character of the target. See People v. Hirsch, 221 Ill. App. 3d 772, 779, 582 N.E.2d 1228, 1232 (1991). We are cognizant that ‘[t]he banner of outrageous misconduct is often raised but seldom saluted’ (United States v. Santana, 6 F.3d 1, 4 (1st Cir. 1993)) and that one circuit of the United States Court of Appeals has declared the defense dead (United States v. Boyd, 55 F.3d. 239 (7th Cir. 1995)). In addressing whether or not the doctrine is valid, the Boyd court stated:

 

FN ‘Today we let the other shoe drop, and [we] hold that the doctrine does not exist in this circuit. The gravity of the prosecutors’ misconduct is relevant only insofar as it may shed light on the materiality of the infringement of the defendants’ rights; it may support, but it can never compel, an inference that the prosecutors resorted to improper tactics because they were justifiably fearful that without such tactics the defendants might be acquitted.’ Boyd, 55 F.3d at 241.”

 

Ming. Id.

 “Several Illinois cases have discussed the defense of outrageous government conduct with respect to undercover drug officers and recognize its validity, including People v. D’Angelo, 223 Ill.App.3d 754, 166 Ill.Dec. 217, 585 N.E.2d 1239 (1992).  In both People v. Johnson, 123 Ill.App.3d 363, 78 Ill.Dec. 829, 462 N.E.2d 948 (1984) and People ex rel Difanis v. Boston, [supra], the defense of outrageous government conduct was recognized. The D’Angelo court found that because defendant failed to raise the issue of outrageous conduct in his posttrial motion, the issue was waived, but the court legitimized the defense by stating, ‘In any event, we do not believe that the conduct of the government agents in this case is so outrageous that it violates fundamental fairness or shocks the conscience.’ D’Angelo, 223 Ill. App. 3d at 782, 585 N.E.2d at 1257. In both People v. Johnson, 123 Ill. App. 3d 363, 462 N.E.2d 948 (1984), and People ex rel. Difanis v. Boston, 92 Ill. App. 3d 962, 416 N.E.2d 333 (1981), the defense of outrageous governmental conduct was recognized as a separate defense from that of entrapment.… However, none of those courts believed that the conduct complained of rose to the level of outrageousness necessary to bar the action…  In fact, no Illinois case has yet to find outrageous government conduct sufficient to bar the prosecution of the defendant; on the other hand, no Illinois case has denied the doctrine’s validity.  After considering the historical perspective of the doctrine, we hold that it is a valid defense in Illinois. …  A defendant can raise the defense of outrageous [government] conduct if the government was overly involved in the creation of a crime or if the government coerced the defendant into participating [therein].    One of the few cases to actually advance the defense of outrageous government conduct from pure theory to reality is United States v. Twiggs, 588 F.2d 373 (3rd Cir. 1978).    Twigg involved an egregious case of government overinvolvement in which the government’s undercover operative essentially concocted and conducted the entire illicit scheme.  The Twigg court characterized the police conduct as ‘so overreaching as to bar prosecution of the defendants as a matter of due process of law.’    Should the proper factual situation arise, courts should apply the doctrine of outrageous police misconduct and dismiss the charges against a defendant.”  Ming. Id.

“After considering the historical perspective of the doctrine, we hold that it is a valid defense in Illinois.” Ming. Id.

 “Whether the circumstances of a case demonstrate outrageous government conduct is a question of law for the court to decide. See People v. Johnson, 123 Ill. App. 3d 363, 373-74, 462 N.E.2d 948, 955 (1984). A defendant can raise the defense of outrageous conduct if the government was overly involved in the creation of a crime or if the government coerced the defendant into participating. See United States v. Mosley, 965 F.2d 906, 912 (10th Cir. 1992)…. Whether or not conduct is outrageous must be determined on an ad hoc basis and cannot be reduced to a specific formula. See United States v. Santana, 6 F.3d 1, 6 (1993)…. [The Santana case gave guidelines to determine outrageous government conduct in drug sting cases where the defendants claim entrapment.] While the Santana court appreciated the district court’s efforts to structure such a test, it found that ‘there is simply no way to reduce the myriad [of] combinations of potentially relevant circumstances to a neat list of weighted factors without losing too much in the translation.’ Santana, 6 F.3d at 6. We agree with the Santana court that there is no universal litmus test for a court to utilize to determine whether or not conduct is outrageous…. Ultimately, the outrageousness of a police officer’s actions must be evaluated by (1) taking into account the totality of the relevant circumstances (Santana, 6 F.3d at 7) and (2) considering whether or not the totality of the circumstances show misconduct of such a nature that it violates fundamental fairness and is shocking to our universal sense of justice. See Russell, 411 U.S. at 432, 36 L. Ed. 2d at 366, 93 S. Ct. at 643.” Ming. Id.

 

The court in United States v. Diaz, 189 F. 3d 1239 (1999) stated the following: “In sum, there is no binding Supreme Court authority recognizing a defense based solely upon an objective assessment of the government’s conduct in inducing the commission of crimes. Non-binding dicta of the Court, indicating that there may be such a defense, has been recanted by its author based upon reasoning later adopted by a majority of the Court in United States v. Payner, 447 U.S. 727, 737 n. 9 (further citation omitted). Moreover, this court has recognized the availability of this defense only in dicta because, in every case in which the issue has been raised, the government’s conduct has been held not to have been ‘outrageous.’ The only case squarely holding that an objective assessment of the government’s conduct in a particular case may bar prosecution without regard for the defendant’s predisposition [United States v. Twigg, 588 F.2d 373 (3d Cir. 1978), cited extensively by Mr. Diaz] has been greatly criticized, often distinguished and, recently, disavowed in its own circuit.” Diaz, Id.

“In considering this argument, we are not as sanguine as the government, nor even as literary or mythical. See Rec. vol. I, doc. 16, at 23 (‘this court should similarly reject the outrageous government conduct defense as a chimera or unicorn ­ often hunted but never taken into captivity’). We note that the disaffection with the doctrine does not yet indicate its total impossibility. Rather, as Justice Powell noted in Hampton v. United States, 425 U.S. 484 (1976), while rejecting the plurality’s conclusion that neither due process principles nor supervisory powers could support a bar to conviction in any case where the Government is able to prove predisposition:

 

I emphasize that the cases, if any, in which proof of predisposition is not dispositive will be rare. Police overinvolvment in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.

 

Hampton, 425 U.S. at 495 n.7 (Powell, J., concurring) (emphasis added).” Diaz, Id. 

 

United States Attorney’s View of Outrageous Government Conduct

[for purposes of understanding the viewpoint of a “prosecutor”]

 

In U.S. Attorney’s Manual:

“While the essence of the entrapment defense is the defendant’s lack of predisposition to commit the offense, the ‘defense’ of outrageous government conduct presupposes predisposition but seeks dismissal of the indictment on the ground that the conduct of law enforcement agents was ‘so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction.’ United States v. Russell, 411 U.S. 423, 431-32 (1973). Thus, the outrageous government conduct defense is not really a defense at all. Rather, it is a claim that the institution of the prosecution suffers from a purely legal defect; as such, the claim is waived unless raised prior to trial under Fed. R. Crim. P. 12(b)(1) and (b)(2). See, e.g., United States v. Henderson-Durand, 985 F.2d 970, 973 & n. 5 (8th Cir.), cert. denied, 510 U.S. 856 (1993); United States v. Duncan, 896 F.2d 271, 274 (7th Cir. 1990); United States v. Nunez-Rios, 622 F.2d 1093, 1099 (2d Cir. 1980).

The Supreme Court has never held that the government’s mere use of undercover agents or informants, or the use of deception by them, gives rise to a due process violation, although in Russell it left open that possibility. The requisite level of outrageousness could be reached only where government conduct is so fundamentally unfair as to be ‘shocking to the universal sense of justice.’ Id. at 432. No court of appeals has held that a predisposed defendant may establish a due process violation simply because he purportedly was induced to commit the crime by an undercover agent or informant. See, e.g., United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir.) (not outrageous for government ‘to infiltrate an ongoing criminal enterprise, or to induce a defendant to repeat, continue, or even expand criminal activity.’), cert. denied, 115 S. Ct. 347 (1994). Defendants who claim to be victims of outrageous government conduct sometimes also argue that the district court should dismiss the indictment in the exercise of its supervisory power. In the absence of a due process violation, however, a district court has no authority to dismiss an indictment on this basis. See, e.g., United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991).” See U.S. Attorney’s Manual

 

Historical Context

[Note: that outrageous government conduct affirmative defenses have

almost entirely been limited to police drug stings and

undercover operations related to drugs and a few cases of proscutorial misconduct-there is no precedence providing guidelines for its use in other situations]

 

In United States v. Santana and Fuentes, 6 F. 3d 62 (1993) the court stated:

“Outrageous misconduct is the deathbed child of objective entrapment, a doctrine long since discarded in the federal courts.  See, e.g., Sherman v. United States, 356 U.S. 369, 372 (1958) (rejecting an objective entrapment approach in favor of a subjective approach).  The doctrine’s midwife was Chief Justice Rehnquist (then Justice Rehnquist), who, in the course of championing a subjective theory of entrapment, speculated that the Court might ‘some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction. . . .’  United States v. Russell, 411 U.S. 423, 431-32 (1972). Seizing upon this dictum, the defendant in Hampton v. United States, 425 U.S. 484 (1975), attempted to construct an outrageous misconduct defense rooted in the due process clause. Hampton lost his case but succeeded in legitimating the doctrine, albeit precariously.FN4

FN4 In Hampton, a concurrence combined with the plurality to reject the appeal.  However, the two concurring Justices switched sides to form a different majority vivifying the doctrine of outrageous misconduct. See Hampton, 425 U.S. at 491-95 (Powell, J. concurring).


Although it has a comfortably familiar ring, ‘outrageous misconduct’ is

surpassingly difficult to translate into a closely defined set of behavioral norms. The broadest hints as to the content of the outrageousness standard lie in the dictum that spawned the doctrine. Inasmuch as Rochin  v. California, 342  U.S. 165 (1952), is the case irrefragably linked with the legal rubric of fundamental fairness, one hint is found in Justice Rehnquist’s citation to Rochin.  See Russell, 411 U.S. at 431-32. A second hint is contained in Russell’s explicit equation of outrageous misconduct with violations of ‘that ‘fundamental fairness, shocking to the universal sense of justice,’ mandated by the Due Process Clause of the Fifth Amendment.’ Russell, 423 U.S. at 432 (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246 (1960)). Picking up on these clues, most courts apply a variant on the fundamental fairness standard as a sounding line for outrageousness. See Mosley, 965 F.2d at 910 (collecting formulations).  Although this standard lacks mathematical precision, we agree with Justice Frankfurter that imprecision of this nature does not leave courts without  adequate guidance; rather, ‘[i]n dealing not  with the machinery of government but with human rights, the absence of formal exactitude, or want of fixity of  meaning, is not an unusual or even regrettable attribute of constitutional provisions.’ Rochin, 342 U.S. at 169.          
           The banner of outrageous misconduct is often raised but seldom saluted.  Even though one respected jurist contends that the doctrine belongs in the dustbin of history, see United States v. Miller, 891 F.2d 1265, 1271-73 (7th Cir. 1989) (Easterbrook, J., concurring),
FN5 case after case confirms its continued existence. See Moran v. Burbine,  475 U.S. 412, 432 (1985) (‘We do not question that on facts more egregious than those presented here police  deception might  rise to  a level  of a  due process violation’); United  States v. Mosley,  965 F.2d 906, 909 (10th Cir. 1992) (collecting cases  from eleven circuits).  Be that as it may, the doctrine is moribund; in practice, courts have rejected its application with almost monotonous regularity. See, e.g., United States v. Barnett, 989 F.2d 546, 560 (1st Cir. 1993), petition for cert. filed (June 28, 1993) (No. 93-5018); United States v. Lilly, 983 F.2d 300, 309-10 (1st Cir.  1992); United States v. Marino, 936 F.2d 23, 27 (1st Cir. 1991); United States v. Rosen, 929 F.2d 839, 842 (1st Cir.), cert. denied, 112 S. Ct. 77 (1991); United States v. McDowell, 918 F.2d 1004, 1008-09 (1st  Cir. 1990); see also United States v. Panitz, 907 F.2d 1267, 1272-73 (1st Cir.  1990) (collecting pre-1990 First Circuit United States cases declining to invoke the doctrine); United States v. Bogart, 783 F.2d 1428,  1434-38  (9th Cir.) (summarizing elevant  case law), vacated in part on other grounds sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir. 1986); United States v. Warren, 747 F.2d 1339,  1342-43 &  nn. 7-8 (10th Cir. 1984) (collecting precedents from various circuits). Indeed, since the Supreme Court decided Hampton, a federal appellate court has granted relief to a criminal defendant on the basis of the outrageous misconduct defense only once. See United States v. Twigg, 588 F.2d 373, 382 (3d Cir. 1978).  The historical record makes it clear, therefore, that the outrageous misconduct defense is almost never successful.FN6

FN5 In  Judge Easterbrook’s  view, the appropriateness of the government’s decision to supply drugs as part of an undercover operation  presents a ‘political’ question that is quintessentially nonjusticiable.  Miller, 891 F.2d at 1272. With respect, we think this conceptualization stretches the military analogy too far.  We adhere instead to the idea that ‘those charged with th[e] investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks.’ United  States  v. District Court, 407 U.S. 297, 317 (1972).

FN6 In addition to Twigg, one court of appeals invoked the doctrine in an alternative holding, see United States v.  Lard, 734 F.2d 1290,  1296 (8th  Cir. 1984), and  another directed  the district court to determine  whether outrageous misconduct should be found on remand, see Bogart, 783  F.2d at 1438.  A smattering of district courts have also applied the outrageous misconduct doctrine to the defendant’s advantage.   See, e.g., United States v. Marshank, 777  F. Supp. 1507, 1524 (N.D.  Cal. 1991); United States v. Gardner, 658 F. Supp. 1573, 1577 (W.D. Pa. 1987); United States v. Batres-Santolino, 521 F. Supp. 744, 751-52 (N.D. Cal. 1981).


          There are two competing visions of the doctrine’s role. One school of thought holds that the defense should be confined to cases involving extreme physical, and possibly psychological, abuse of a defendant.  See United States v. Kelly, 707 F.2d 1460, 1476 n.13 (D.C. Cir.) (per curiam)  (collecting cases),  cert. denied, 464  U.S. 908 (1983).  A second school of thought holds that outrageous misconduct may also function as a kind of supplement to  the entrapment  defense, reserved for  those cases where law enforcement personnel become so overinvolved in a felonious venture that  they can fairly be said either to have ‘creat[ed]”  the crime or to have ‘coerc[ed]’ the  defendant’s participation  in it. Mosley, 965 F.2d at 911-12; see also Bogart, 783 F.2d at 1436-38. This case does not require us to choose between these two conceptions of the doctrine….
               Having traced the evolution of the doctrine of outrageous misconduct, we proceed to consider its applicability in this case. Although what transpired here fits neither of the conventional patterns of outrageous misconduct described above, the district court nonetheless ruled that furnishing the hefty heroin sample (and then losing track of it) comes within the doctrine’s sweep. We conclude, for two independently sufficient reasons, that the district court erred….
          Nevertheless, we do not think that the inquiry into outrageousness can usefully be broken down into a series of discrete components. Almost by definition, the power of a court to control prosecutorial excesses through resort to substantive aspects of the due process clause is called into play only in idiosyncratic situations and such situations are likely to be highly ramified. Where facts are critically important and fact patterns tend to be infinitely diverse, adjudication can often best proceed on a case-by-case basis.  The outrageousness defense falls into this category. Thus, it is unproductive to force the determination of outrageousness into a mechanical mode….
          Let us be perfectly plain. We find that outrageousness, by its nature, requires an ad hoc determination….

At bottom, however, outrageousness is a concept, not a constant. What shocks the conscience in a given situation may be acceptable, though perhaps grim or unpleasant, under a different set of circumstances. Slashing a person’s throat with a sharp knife may be an unrelievedly outrageous course of conduct if one thinks in terms of Jack the Ripper, helpless women, and the shadowy streets of London; the same behavior will be thoroughly acceptable, however, if the knife is a scalpel, the knife-wielder a skilled surgeon performing a tracheotomy, the target a patient, and the venue an operating room. Although we recognize that formulaic tests offer administrative convenience and ease in application, we also recognize that neither life nor law can always be made convenient and easy. So here: there is simply no way to reduce the myriad combinations of potentially relevant circumstances to a neat list of weighted factors without losing too much in the translation. Cf. Borden v. Paul Revere  Life Ins. Co., 935 F.2d 370,  380 (1st Cir. 1991)  (discussing ‘outrageousness’  in the context  of tort liability and concluding that ‘[t]here  is no  universal litmus test that a court can utilize to determine whether behavior is extreme and outrageous’)….

 

[FN presented without text referencing it] FN11 We do not totally reject the possibility, suggested by the court below, that outrageous misconduct may be found apart from situations in which the government has used brutality or induced commission of a crime.  We simply note that the case at hand does not require us to explore this doctrinal frontier….

 

Generally speaking, an outrageous misconduct defense can prosper only if a

defendant’s due process rights have been violated….

            [T]he outrageous misconduct doctrine, no matter how cramped its confines, is not entirely mummified. Should the occasion and the necessity arise, we continue to believe that the law will prove itself adequate to the task of preventing the government from going too far. In the war on crime, as in conventional warfare, some tactics simply cannot be tolerated by a civilized society.”


Santana, Id.

 

 

Dated: April 4, 2007

                                                                        Respectfully submitted,

 

 

                                                                        Linda L. Shelton

                                                                        Pro Se Defendant

Linda Lorincz Shelton, Ph.D., M.D.

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1 Comment »

  1. […] Outrageous Government Conduct – Not Just for Drug Cases! FN ‘We are adhering to Justice Powell’s reasoning [in Hampton] that in evaluating whether government conduct is outrageous, the court must consider the nature of the crime and the tools available to law enforcement agencies to combat it … […]

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