From: matt@smoke.brl.mil (Matthew Rosenblatt)
Newsgroups: misc.legal
Subject: Re:  Supreme Court curbs police sting operations
Summary: Lawyers in action.
Keywords: misinterpretation
Date: 13 Apr 92 14:42:15 GMT
Organization: U.S. Army Ballistic Research Laboratory, APG, MD.

In article <1992Apr11.001649.23364@m.cs.uiuc.edu> 
kadie@herodotus.cs.uiuc.edu (Carl M. Kadie) writes:

>	``Had the agents in this case simply offered (Jacobson) the
>opportunity to order child pornography through the mails, and (Jacobson)
>-- who must be presumed to know the law -- had promptly availed himself of
>this criminal opportunity, it is unlikely that his entrapment defense
                            ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
>would have warranted a jury instruction,'' wrote White.
 ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

>	``But that is not what happened here. By the time (Jacobson) finally
>placed his order, he had already been the target of 26 months of
>repeated mailings and communications from government agents and
>fictitious organizations,'' White continued. ``Therefore, although he
>had become predisposed to break the law by May 1987, it is our view the
>the government did not prove that this predisposition was independent
>and not the product of the attention that the government had directed at
>(Jacobson) since January 1985.''    [Byron White]

See what's happened here?  One lawyer, Justice White, writes in plain
English that if the pervert in this case had ordered child pornography
the first time it was offered, it would not likely have been necessary
even to instruct the jury about entrapment.  Justice White wrote that
the key to letting this fellow off was the government's "repeated"
actions to get him to commit the crime.  But then another lawyer
gets her hands on his opinion, and reads it to mean what Justice White
specifically said it does *not* mean:

>	O'Connor said that despite the majority's belief that the ruling will
>not halt ``run-of-the-mill sting operations,'' it very well could.

>	``After this case, every defendant will claim that something 
>the government agent did before soliciting the crime 'created' a
>predisposition that was not there before,'' O'Connor wrote for the
>dissent.

>	``For example, a bribe taker will claim that the description 
>of the amount of money available was so enticing that it implanted a
>disposition to accept the bribe later offered,'' O'Connor wrote. ``A
>drug buyer will claim that the description of the drug's purity and
>effects was so tempting that it created the urge to try it for the first
>time.''   

>	``In short,'' she warned, ``the court's opinion could be read to
>prohibit the government from advertising the seductions of criminal
>activity as part of its sting operation, for fear of creating a
>predisposition in its suspects.''   [Sandra O'Connor]

Although the whole case turns on the Government's repeated activity,
Justice O'Connor writes that a single government action, if it makes
"the seductions of criminal activity" look attractive enough, could
sustain a bribe-taker's or a dope dealer's defense of entrapment.
Didn't she read Justice White's words?  Doesn't she think that judges
and jurors are capable of distinguishing the _Jacobson_ case from a
run-of-the-mill sting operation?  Why does one lawyer so misinterpret
what another lawyer says?

					-- Matt Rosenblatt
                                        (matt@amsaa.brl.mil)

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