By Emma Witman
Burden of proof remains on suspects who claim enticement by law officers
Undercover law enforcement officers from local and federal Northeast Georgia agencies recently have netted arrests by posing as poachers, drug dealers, militia members and 15-year-old girls.
Such investigative tactics often rankle the targets, who claim a pure mind was pushed to criminality by an officer, alluding to the legal concept of “entrapment.”
But that’s a legal defense far more difficult to prove than perhaps it’s often construed, legal experts said.
“The government can stick any amount of meat in front of your nose and even have you open your mouth, but you’re the one who chooses to bite,” Circuit Defender Brad Morris said.
Georgia criminal code says that a person is not guilty of a crime if entrapped. Entrapment occurs when the idea and intent of committing a crime originated with a government officer, employee or agent who has additionally by “undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.”
In decades of practice, Morris said he has never seen an effective entrapment defense.
“Entrapment technically is a defense. It just hardly ever works,” he said.
In federal court, a defendant can deny committing a crime and simultaneously argue he was entrapped into committing a crime, Assistant U.S. Attorney William McKinnon said. The burden is on the defendant to provide such evidence.
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“If the defendant is unable to make that showing in the trial, then the defendant is not entitled to an entrapment instruction with the jury,” McKinnon said. “The trial judge decides whether there’s a minimum amount to even raise it with the jury.”
An entrapment instruction was requested in the trial of two Toccoa men convicted Jan. 17 on domestic terrorism charges, McKinnon said. U.S. District Court Judge Richard Story did not find sufficient evidence that an undercover agent had persuaded the men to conspire to make Ricin with castor beans.
Yet Georgia code doesn’t allow defendants to both deny their conduct and assert entrapment, or essentially the “I didn’t do it, and if I did, I was entrapped” defense.
Russell Gabriel, a law professor at the University of Georgia, said entrapment is somewhat analogous to self-defense in that sense.
“They are both what are called affirmative defenses,” Gabriel said. “You have to admit the deed, but this is a legal excuse for having done it, and those are jury questions.”