Saturday March 24, 2012

PITTSFIELD

The circumstances of the recent arrest of the in dividual who allegedly committed four armed robberies in Pittsfield, is an example of how law enforcement officials still try to solve crimes the old-fashioned way. They use informants. Accord ing to the March 18 story in this newspaper, the Egremont police chief was told by a confidential informant that this individual was responsible for those robberies and that she was allegedly planning another one in Egremont. But such knowledge of whodunit is not tantamount to a later court conviction of the perpetrator.

When I was at the FBI Aca demy, the instructors stressed the development of informants as one of the best criminal investigative tools to de velop information and solve crimes. The circumstances of the arrest as reported in The Eagle is typical of the various scenarios discussed in those classes at the Academy and used in the field by law en forcement officials. As an agent, I have also been in volved in these situations. When I worked on theft from interstate shipment cases, this is how we typically solved those crimes. Informants would identify the thieves. But knowing whodunit was only part of the investigation. We had to develop evidence ad missible in court. In the theft cases, the thieves invariably had to transport stolen goods to a drop for storage or sale.

Informants would give us details of the use of the car or truck for this purpose. We would then contact the Chi cago Police Department to stop the individual’s car or truck for a traffic infraction in a manner that would hold up in court and allow them to legally search the vehicle. Un der these circumstances the police would find the stolen property, arrest the driver and turn the case over to us. The end result would be a case for a federal prosecutor for either the theft itself or for receiving stolen property with evidence of a traffic stop, a legally justified search of the vehicle, and the presence of stolen property in the vehicle which ap peared on a list of stolen pro perty previously furnished to the police. All this without disclosing the involvement of an informant.

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In the Pittsfield robbery case, the Egremont police chief reportedly disclosed to the press that she learned the identity of the alleged armed robber [who has pled not guilty to all four counts brought by pro secutors] from a confidential informant. Then on the very next day, the chief and one of her officers made the traffic stop in that town. This public disclosure, unlike the non-disclosure in the interstate theft case example, is a red flag for a defense lawyer of the possibility of a pretext traffic stop to search the car in question. In other words, this has the appearance of not being just a coincidental traffic stop. If a judge in a later court action finds that there was either no legal justification for the stop or the search of the car, any evidence obtained as a result of that stop -- the reported black clothes, the paint spray gun in the car, and the handgun reportedly found later in Pittsfield -- could be ruled inadmissible in a criminal trial. In which event, according to what has been reported about this incident, the only remaining evidence would be the car stopped in Egremont which Pittsfield Police Captain Pat rick F. Barry reportedly said he believed was used in one of the robberies. A not so strong circumstantial case at best.

All of the above is based on what has been reported about the circumstances of the arrest and subsequent searches and items found. I do not know whether there is other unreported evidence. My interest in this case is partly to inform the public that despite many of the fictional police techniques they watch on television criminal shows to solve crimes, the use of in formants remains a real, ma jor pervasive law enforcement tool because it continues to solve criminal cases.

My other reason is to re mind the public that underlying all criminal prosecutions in this country is the prosecutor’s burden of proving the charges against a defendant, and not whether a defendant is guilty or innocent of the crime. Assuming that we know who the Pittsfield armed robber is based solely on her identification by the Egremont police chief’s confidential informant, the county district attorney must still prove it in court with admissible evidence beyond a reasonable doubt. The public would better understand criminal trials if the plea a defendant is required to make (guilty or not guilty) was changed to "prove it."

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In the Pittsfield robbery case, based on what has been reported, there are several scenarios. If a judge should find that the traffic stop was a pretext to conduct an unreasonable search and seizure of the paint spray gun, black clothing, and the later found handgun, then all these items would be excluded from use against the defendant. What then would the prosecutor use to prove the charges? Would the informant be used as a witness and would he or she be credible to a jury?

Despite their usefulness to law enforcement, there is public disdain for these Ju das-like individuals because of the treachery and betrayal that name bespeaks. That is one of the reasons these individuals are rarely used as witnesses. The other obvious reason is that their loss of usefulness to law enforcement once their identities are disclosed.

Robert "Frank" Jakubowicz, a regular Eagle contributor, is also a former assistant district attorney.