Cops as Junkies
A tour through the dismal day-to-day world of narcotics agents, where anything goes. Anything and everything.
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After the trial, Duane and Gail moved back to Amarillo. Life resumed more or less as it always had. He found a new job, driving a truck. There were new bills. They argued about paying Laird Palmer—Gail didn't want to, not yet, but Duane insisted. He went back on heroin. She got a divorce, and Duane went out and robbed the Northside State Bank of Amarillo. He is now doing eight years in the federal penitentiary at El Reno, Oklahoma.
The jury that sat in judgment of Duane Osborne was spared this fundamental consideration: What is there in the experience of the hangman that leads him willingly to the gallows? What act of conscience? If Osborne knew the consequences of his act of armed robbery, as the jury believed, then he also knew that the more than 20 drug cases he had made in Killeen would be dismissed for lack of a credible witness.
Drug cases are unique in that the only victims are the willing participants. Since these participants are also, in most cases, the only witnesses to the crime, the essential ingredient in the anatomy of a drug cases is what happened just before the crime. Whose dope was it? Whose idea?
Entrapment is the act of drawing a victim (or "potential defendant", as they say at narc school) over a vaguely-drawn line and causing him to commit a crime he would not otherwise have committed. The burden of proving entrapment rests with the citizen. A lawyer must convince the court that his client was not "pre-disposed" to commit the crime. As DPS agent-in-charge Elmer Terrell reminds every narc class, if a potential defendant in a drug case can not prove entrapment or discredit the officer's testimony, then he will be convicted.
But what is entrapment?
"I can't place the thought of an illegal act in your mind," Terrell told me.
"You mean, if you come up to me and say, 'Boy, I sure would like to have some dope' and I give you some. . . ."
"Then that's entrapment." Terrell assured me.
I was in the office of DPS publicity man Bill Carter, talking to Terrell and Carter. Agent Terrell is a stone-faced, no-nonsense, black-and-whiter, a man like Duane Osborne grew up wanting to be. Terrell's hair has turned gray in his 21 years with the DPS, and his department has grown from 15 in 1968 to more than 100. Terrell says his office investigates every complaint of entrapment, but they've never found a case yet where an agent went over the line.
"Sure," Terrell said, "you're gonna hear a lot of jailhouse lawyers yelling entrapment. What would you do if you were arrested for drugs?"
The problems of entrapment are considerably more complex—in theory, as well as practice—than Elmer Terrell would have his pupils believe,
"The problem with professional undercover agents," says Austin attorney Sam Houston Clinton, "is that they are very good at stretching the truth to suit what the court and the jury want to hear. They claim never to use drugs, only to simulate the act. They claim that they never solicit drugs; they are always asked. Now that's so contrary to human experience that you can't help but believe that many of them are trained liars. The judge and jury tend to accept the officer's word for what went on. At the trial, the narc looks like any plainclothes detective. Shaved. . . .groomed. . . .highway patrol haircut. All the while the DA is telling the jury: this man is out there in the slime and filth, risking his life for you and your children. Unless the defense can catch a narc in an outright and very obvious lie, he's gonna come out looking like a hero."
A lawyer in the state Attorney General's office gave me an example of entrapment: "I come up to you and say, 'Hey, man, I'm hungry. I sure could get off on a couple of reds.' Now say you blow me off, but I keep coming back. You keep putting me off, and I keep coming back. Finally, just to get rid of me, you go next door, borrow a couple of reds and give them to me. That is entrapment."
I asked the man in the AG's office about the practice of granting immunity to informers. I mean, who gives Duane Osborne or any other agent the right to grant immunity to a man who has been caught in an illegal act? He didn't have an answer, but he defended the practice. "It's either that," he said, "or try to get the department to give you buy money [to purchase drugs]. It's almost impossible for an agent to get buy money. It's next to impossible to even get flash money (to show to a potential seller). An agent has to do what he can. Allowing an informer to work his case off is one way of getting the job done."
This was one area of operations that Elmer Terrell didn't care to discuss, other than to admit that neither the DPS nor any other law enforcement agency had the power to grant immunity. Immunity, he said, was always arranged through the court and the DA's office. "Ninety percent of the time," he said, "it's the defense attorney who approaches us."
I told one defense attorney what Terrell has said about immunity, and he laughed. Then he gave me an example of how informers are created. Four years ago, near Memorial Stadium in Austin, two DPS narcs stopped a university student for a minor traffic violation, searched his car and found two diet pills. They also accused him of driving a stolen car, although he quickly proved that he had borrowed the car from his mother. "Now possession of two diet pills is a very marginal case, as any experienced officer knows," the attorney said. "But they threw the fear of God into this kid. When they felt that they had him, they offered this deal: he could work it off by turning in five people. It wasn't enough just to turn them in, five cases had to be made, cases they could take to court, with a reasonable assurance of conviction. The kid came to me and said he just couldn't do it. We sued the DPS for violation of his rights, and in the course of trial both agents involved. . . .as well as their supervisor. . . .admitted, in writing, that this was the standard practice for recruiting informers."
Sam Houston Clinton cited another common abuse—what he called "search and destroy missions." A team of narcs going through a private home in search of drugs can resemble My Lai. A few years ago Dallas police raided an underground newspaper, supposedly for a drug search. They didn't find any drugs, but they wrecked the newspaper, carrying off typewriters and other office equipment, mutilating advertising lists, even destroying checks and bank statements.
In another case, Sam Houston Clinton asked a narc how his team gained entry to a home.
"With a master key," the narc answered.
"And where did you get this master key?"
"We always carry it with us," the narc said.
"And could you describe the key to the jury?"
"Yes, sir. It was a 16-pound sledge hammer."
The fifth-floor jail in the Travis County Courthouse smelled like starch and chicken-fried steak. Sheriff Raymond Frank called out, "Open Number Two," and I followed him inside with my tape recorder.
A veteran of 27 years in the Air Force, most of it as an investigator and supervisor with the OSI (the FBI of the armed services), Raymond Frank unseated Travis County's longtime incumbent sheriff, T. O. Lang, in 1972. As he promised in his campaign, Sheriff Frank has made some dramatic reforms, including humanizing what was once one of the worst jails in Texas.
Raymond Frank has launched his own drug investigation, but it is not one that endears him to other narcotics agencies: the sheriff is investigating illegal practices of the narc trade.
"It has got to the point," he told me, "where entrapment is the standard method of making a case. Agents are not only using drugs themselves, they are planting the seeds of the crime. When an undercover agent says to a peddler, 'Can I score with you?,' that is entrapment. Now it's a shame to do away with entrapment because it is very effective in terms of arrest and conviction. Unfortunately, arrest and conviction seem to be the only concerns of these agents. I don't want my children victimized by agents like that, and I don't think the people who elected me do either."
Faced with the near certainty that narcs had to break several laws to enforce just one, Raymond Frank abolished the infamous Travis County narcotics squad. He hit this theme time and again in speeches to civic groups—when enforcement of a law becomes a worse abuse than the thing the law was designed to prevent, we're all in trouble. We have lost sight of where we are. Sheriff Frank's statement (in The Texas Law Forum) that entrapment is standard procedure outraged Elmer Terrell and other agents, but the sheriff pointed out that he was an elected official, then added: "I think it would be a healthy situation if the head of the DPS had to run for office. That way, if he refused to clean his own house, then the voters could help him along." Incidently, that same issue of Law Forum revealed that 75 percent of the students at the University of Texas Law School have sampled marijuana, and that 25 percent of them sample it regularly.
"We're not turning our back on drug abuses," the sheriff told me, "but we're not making it our priority either. Our priority is burglary. A few weeks ago we stopped a car we were looking for in connection with a burglary and found 200 pounds of marijuana. We filed a case. What I'm saying, we didn't stop the car to search for drugs."
Raymond Frank's crusade against the holy crusaders hit its high mark when the sheriff learned one morning that a narc who was at that moment upstairs in 53rd District Court testifying against 16 drug defendants was in fact a Navy deserter. The sheriff asked the narc to step out of the courtroom, slapped him in handcuffs, and escorted him to jail. Needless to say, both the University of Texas security police who had hired the narc (the busts took place at Jester Center on the UT campus) and the Travis County DA were outraged. With their star witness in jail, their cases against the Jester 16 were worth little or nothing. Assistant DA Herman Gotcher even hinted that the sheriff might be taking his orders from the Mafia.
The Travis County jail overflows with drug prisoners, almost everyone of them there because a jury believed a narc's testimony. While we were waiting for a jailer to bring a certain prisoner to the interview room, Sheriff Frank told me:
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