The Washington Post recently reported that an inmate in the Prince George's County detention center offered a policeman $40,000 to kill the inmate's wife. This solicitation took place when the officer visited the inmate. The story does not say whether the officer was in uniform at the time, but I'm inclined to doubt it because he told the inmate that he was a lawyer. A few days later, the inmate was in court - he was being sentenced to prison for life for a previous murder - and it was there that he learned that the supposed attorney was a captain in the Maryland State Police. This time there was no disguise: the prosecutor introduced the captain and told the court that the officer had been posing as an attorney. Very clever of the captain - and no one seemed to find anything wrong with the play-acting.
Murder is bad; solicitation for murder is bad. But what is also not exactly good is a police officer's posing as a lawyer when he visits an inmate in jail. I'm not expressing sympathy for someone who solicits someone else to commit murder and then finds that the person to whom he has been talking is a policeman. I am, however, aghast at finding that apparently no one found anything wrong about a policeman's seeking to obtain information from a prisoner by posing as a lawyer. I doubt whether the police officer expected to be solicited to murder someone, but why did he pose as a lawyer in the first place? Did he expect to learn things from the inmate that the inmate would not have told to anyone other than his lawyer?
It is difficult to believe that the incident is the first and only time a policeman has held himself out as a lawyer to ingratiate himself with an inmate, and it doesn't take much imagination to think how easily the rights of someone in jail can be violated by this artifice. Obviously, a prisoner, and especially a not particularly sophisticated prisoner, can easily be hoodwinked into believing that a reasonably well-dressed person who makes the right sounds is a lawyer. So the prisoner is set up to confide to the sham lawyer. The encounter not only demolishes the protection afforded to one seeking right to councel; it also opens up a Pandora's box of possible other violations of the prisoner's rights.
Policemen have, since time immemorial, sought to obtain information from those in their power. Physical force and clever and even tricky questioning are nothing new. Brutality is now officially discouraged, at least in this country, and while we appear to have passed the high-water mark insofar as the rights of an accused are concerned, there are still many rules that the police must observe, many points beyond which they may not go, and many rights that they must respect. One of those rights is the accused's right to counsel, and to make it possible for the accused to avail himself of that right, he has to know when he is talking to a lawyer. If the police pose as lawyers, even those prisoners who wish to communicate freely with their lawyers will hesitate to do so, for they will never know whether they're speaking to the real thing or whether their confidences will be betrayed. When a police officer elicits information from a prisoner by posing as an attorney, able to receive in confidence the prisoner's side of a story, he makes a mockery of the judicial process, for how is a prisoner to protect himself against phony lawyers, particularly when the tactic appears to be sanctioned by the police, the prosecutors, the courts?
There is, of course, nothing wrong with the police collecting information by any constitutional means. However, improper searches and seizures and forced confessions have no place in a free society, nor do we yet approve searching a prisoner's mind by drugging him with a "truth serum." But if a police officer poses as an attorney for the purpose of tricking a prisoner into confiding otherwise privileged information - that is nothing but another form of a mind search, which, I believe, is just as reprehensible as any other illegal search.
When you get right down to it, letting a police officer masquerade as a lawyer is in the same league as bugging the cell in which the prisoner talks to his real lawyer. Fortunately, that practice has been outlawed, and it's high time that the cop-as-counsel act likewise disappear.
Of course, I hope it won't be replaced by the cop-as-clergyman or cop-as-shrink act.