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The Arrest of Ohio Terror Suspect Christopher Cornell: Questions Abound, Including the Role of Informants and the Issue of Entrapment

Yesterday’s arrest of an Ohio man in conjunction with an alleged terror plot on the U.S. Capitol not only made immediate headlines, but likely added to growing public fear here in the U.S. – with reports focusing on this latest “homegrown terrorist” from America’s heartland.  Twenty-year-old Christopher Cornell, arrested outside of a Cincinnati gun store after purchasing two automatic weapons and 600 rounds of ammunition, was preparing to execute a plan to set off pipe bombs at the U.S. Capitol and begin shooting employees and officials running from the building, according to an informant who led the FBI to Cornell.  In the hours following his arrest, however, Cornell’s parents came forth to not only support their son (who they insist is not a violent man), but to question the role that this informant had in possibly coercing their son into these actions.

Was Christopher Cornell’s arrest for an alleged terror plot a case of entrapment, as his parents suggest?  And in today’s legal system, what constitutes entrapment?  With Christopher Cornell’s father John Cornell suggesting that the FBI used entrapment to frame his son, it’s important to look at what entrapment is, and what it isn’t, in looking at this case – and others that may unfortunately follow.

When confronted with situations involving confidential informants and undercover operatives, it is very easy for many people to consider the issue of entrapment.  The public is often under the common misconception that anytime an undercover police officer or confidential informant is used in the case that it is entrapment; that the defendant has been improperly tricked or lured into committing a crime by a self-serving snitch or an overzealous law enforcement official just looking to make an arrest.

Legally, however, it is quite difficult to raise a successful defense of entrapment.  In New York State, the defense has the burden to prove, by a preponderance of the evidence, that the defendant was induced or encouraged to commit a crime by the government or its agent using methods that would create a substantial risk that the offense would be committed by someone not otherwise disposed to commit it.  PL § 40.05.  The level of inducement or encouragement by the government must go beyond merely giving someone the opportunity to commit the offense.  An undercover agent asking a defendant whether or not he wanted to commit a crime is not entrapment.  See People v. Brown, 82 N.Y.2d 869 (1993), see also People v. Skervin, 17 A.D.3d 771 (3rd Dep’t 2005).

Similarly, in federal courts, the entrapment defense also focuses on inducement and predisposition to commit a crime.  See Mathews v. United States, 485 U.S. 58, 63 (1988).  Predisposition “focuses on whether the defendant was an unwary innocent or, instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the crime.”  Mathews, 485 U.S. at 63.  Once again, mere solicitation is not enough.  See Sorrells v. United States, 287 U.S. 435 (1932).  The real question is did the government make an otherwise innocent person commit a crime?

Regardless of how the facts of this particular case apply to that pivotal question, the general use of informants in these types of investigations will continue. Informants are a key asset in the arsenal of law enforcement to ferret out crime that might otherwise have been undetected.  Informants are commonly used in drug trafficking investigations.  Arguably, the use of informants in terror plot investigations is even more justifiable – innocent lives may be at stake.  Counter-terrorism investigations like the one that led to the arrest of Christopher Cornell are exactly what we should want our federal law enforcement to be doing.

For more information on the case click on the links below:

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