No anticorruption policy can succeed if the courts themselves are corrupt. If those tempted to offer or accept a bribe or otherwise rob the public can buy their way out of trouble, laws against corruption are meaningless. Ensuring judges decide cases honestly is thus the keystone of any broader effort to control corruption. The best defense against judicial corruption is, as a recent U4 paper stressed, a rigorous process for selecting judges, one which screens out those willing to sell their integrity for a price.
Character tests are not foolproof, however, and so even with the most thorough screening a few crooked apples can slip through. When they do, rooting them out is especially difficult, for proving a judge has taken a bribe to fix a case is extremely difficult. A judge may acquit the defendant for any number of reasons, and even if the reason given seems obviously wrong, that alone is not enough to establish corruption. Moreover, bribery is a consensual crime. Neither the judge taking a bribe, nor the defendant paying it, nor a go-between facilitating the transaction will have any reason to reveal the crime and every reason to keep it secret.
Purging the judiciary of corrupt judges will thus almost always require an undercover operation, one where law enforcement personnel or informants pretend to be dishonest to elicit incriminating statements or conduct from the investigation’s target. Such “stings” are often controversial and are fraught with risks, those targeting judges even more so. Yet given the great harm judicial corruption causes, the risks will often be worth taking. When they are, designers of a sting may find it useful to review how U.S. authorities minimize the risks of undercover operations in the judiciary.
Most of the U.S. experience with undercover operations targeting corrupt judges arises from Operation Greylord, a federal investigation in the nineteen eighties into corruption in the trial courts of Chicago and surrounding Cook County that resulted in the conviction of 13 judges and some 80 lawyers and court staff for bribery and related crimes.
Once prosecutors had decided that an undercover instigation was required, they had to determine whether to enlist actual defendants as informants. Should they recruit someone already charged with a crime to offer a judge a bribe in return for dismissing the case? They quickly decided not to. If the judge accepted the bribe, the briber payer would go free, and he or she might then commit more crimes that could harm the public. If the bribe payer had been driving while intoxicated, she might drink and drive the next day and injure or kill someone. Or if the bribe payer had assaulted someone, he might assault someone else if freed.
In light of this risk, prosecutors decided to fabricate cases and then see if a judge would accept a bribe for fixing it. An investigator would get arrested for driving while intoxicated by pouring alcohol all over himself and then drive erratically in front of a policeman. Or one investigator would pose as the victim of an assault by a second investigator. The “defendants” would then maneuver to have their cases heard before judges suspected of taking bribes and offer to pay to get their case dismissed.
Even with fabricated cases, though, prosecutors foresaw risks both legal and ethical. Taking a page from a then recent court case that had cast a pall over two recent undercover operations that snared corrupt lawyers, the prosecutor in charge of Greylord in its initial stages developed the following six rules of thumb for undercover operations targeting the judiciary.
(1) No feasible alternative. There should be no feasible alternative to the undercover operation. Prosecutors should document that the undercover investigation was undertaken only after it was decided that there was no workable alternate for obtaining sufficient evidence to prosecute.
(2) Careful target selection. The investigation must target only persons which substantial and reliable evidence showed were already involved in criminal activity of the kind under investigation. In other words, the investigation was not be an open-ended fishing expedition designed to snare any and all judges.
(3) Careful case selection. The contrived cases should be carefully staged to avoid undue risk of harm to third parties, including police who were unaware of the operation. A careful look at who is going to be targeted and what kinds of cases are going to be used is essential. Use of a real case should be a last resort only — and then only under the strictest of safeguards.
(4) Careful and continuous supervision. The investigation should be carefully and continuously monitored by senior officials in the prosecutors’ office. In the case of Greylord not only was the U.S. Attorney for Chicago personally involved but lawyers at the highest level of the Department of Justice in Washington and the Director of the Federal Bureau of Investigation also personally reviewed the operation on an on-going basis.
(5) Minimization of evidence gathering. Investigators should do only what is necessary to obtain evidence of criminal activity, and as soon as sufficient evidence to arrest is gathered, the operation should cease as to that person. If a person is targeted under the tests outlined above and he or she rebuffs the approach or fails to respond to overtures of criminal conduct, the investigation should cease as to that individual without further ado. If electronic eavesdropping devices are used, they should be used only to the extent necessary to obtain reliable evidence, and only in accordance with legal procedures.
(6) Notification to appropriate authorities in the judiciary and local law enforcement. Trustworthy persons in authority in the judiciary and law enforcement should be notified and kept advised of the investigation.
Undercover operations can be dangerous and politically controversial. But if corruption has crept into the justice system, authorities will frequently have little choice but to turn to them to expel corrupt judges and restore the courts’ integrity. When they do, the U.S. guidelines can help them design their own safeguards — not only to minimize the risks that attend such operations but to maximize the chances that the operation will produce a clean, effective court system.