Legal Question: what would happen to an undercover officer in this situation?

Factual Questions
1

The TV show The Chicago Code proposes a curious situation that I am interested in how real life would play out.

In the show, one of the characters is working deep undercover, pulled from the academy and been under a year so far, with only a handful of people aware of his actual status. His assignment is trying to root out corruption of a government official by working his way into the underworld and becoming one of that guy’s henchmen.

Early in the series, he needs to establish his cred with the group. They have a scheme to start house fires so they can get the contracting job for repairing the house afterwards. So he signs up.

His first assignment, he shows up and is explained how to do it and told to take care of it, which he does. He’s an undercover, and it’s expected that undercovers can do some crimes in order to gain access to further criminal enterprises.

But he’s watching at the scene after the fire is put out, and they pull out a body that he finds out died in the fire. He was set up by the guys he works for, and didn’t realize they had some guy in the house they wanted killed.

Now the TV show has him torn up by it, and he gets an ass-chewing by his contact for not ensuring the house was clear (which he only did a partial job on), and the Superintendent of the force also knows what happened. But he is left undercover, and not brought in to the station for official debriefing or anything. In the context of the show, there is so much corruption in the police force that if they did anything official, his identity would get back to the person they are trying to investigate and his cover would be blown. It makes sense that they can’t make records or anything. But he is guilty of manslaughter - he set the fire that killed the guy, and he did not ensure the house was empty, which he had the opportunity to do.

I’m wondering how a case like this would play out in real life. What happens in an undercover situation when the officer ends up killing someone - whether in self defense, or a similar manslaughter situation with the commission of a crime as part of setting up his credentials being more serious than he intended?

Does anyone have any real knowledge?

2

Dunno. If he could prove he didn’t ( gained no benefit ) deliberately harm anyone, I would imagine they’d let sleeping dogs lie.
The Hong Kong trilogy **Infernal Affairs**dealt with the situation when a police mole suddenly loses the only superior who can identify him as a policeman.
Things were solved by nearly everyone being killed.

3

I suppose it depends on the jurisdiction. Am I correct in assuming that this television show takes place in Chicago?

4

Yes…sort of a idealized Chicago with an El track on every block… :slight_smile:

5

If jurisdiction matters to your response, he is a local Chicago cop working directly for the Superintendent, with only 2 other cops who work directly for her (a “special task force” that is not funded as such by the agency, so merely a pair of detectives with special authority) who know the guy is UC. As far as we know.

His cover says he grew up in Philly, so it’s plausible the character actually did, or maybe even Boston, and thus the cover protects why he is relatively new to the area and no one knows him personally “from the hood”.

It’s pretty easy to conclude he wouldn’t personally gain anything from the death beyond the leverage it gives the bad guys over him. If he weren’t already a cop, it would be a great way to get him far dirtier than he thought he was getting and thus put far more leverage over him than he expected when signing up for arson, and thus making it far less likely he’d try to rat them out.

As a cop, it still seems like pretty good leverage to me. I mean, the whole point is to get inside the Irish gang activity far enough that he becomes a worker for one of the Alderman, who the Superintendent “knows” is corrupt but needs evidence. So the goal is eventually to arrest the Alderman, and take out a big swath of the Irish gang in the process, maybe even find other corrupt officials linked to the Alderman. So they have to expect this cop to eventually be required to testify in court, and him having been involved in a homicide is certainly something that any defendant would use to taint his testimony.

So the issue is just how much of an effect does this play on his eventual credibility. Say he later comes up with evidence of money laundering, bribing and intimidation, mabye even embezzlement by the Alderman. They want to bring to trial, but the evidence is collected by and testimony from a guy who committed arson and manslaughter. How much could a good defense attorney play that to get the evidence/testimony thrown out? How about taint the guys reputation to a jury?

I would think they would be hard pressed to exclude it. Deals are done all the time, it would be easy to include an immunity agreement just by virtue of him being a cop. Pretty much the boss lady knows the situation, and when the truth finally comes out she explains it to the D.A., who is so thrilled with the big fish that punishing a cop for not thoroughly checking the scene when he had no reason to suspect anyone was there (other than, of course, the guy setting him up was extremely creepy and overly emphatic that he not look around, which immediately made me suspicious) that said DA decides there’s nothing gained by prosecuting the cop. (I guess I may have answered part of my question.)

But how does this affect the eventual credibility to the jury?

I’m just trying to figure out how realistic my guesswork is. I understand the difference between fiction and reality - I’m curious in trying to qualify that difference for my own personal edification.

6

Does Illinois have a felony homicide law? Because that would be more applicable than manslaughter. And let’s face it - Liam is guilty of felony homicide.

When and if he finally does testify against Gibbons, the DA is going to have to make some kind of immunity deal for him.

Another issue is whether Colvin and Wysocki are accessories after the fact by not bringing Liam in.

My personal guess is there will be some kind of deus ex machina in the show that’ll avoid these issues. Liam and/or Gibbons will end up dying before any trial is held and the death will get swept under the rug.

7

I realize the TV show can do anything they want, including killing Liam in a tragic gun fight, or getting run over by a bus, or having a meteor hit Gibbons in the head.

I’m more interested in reality. Thanks for pointing out “felony homicide”, but what exactly do you mean? Isn’t any non-accidental, non-self-inflicted death a homicide? And is manslaughter not a felony? I am interested in how this would in real life be weighed as a legal matter.

There was a different situation on Lie To Me where a federal agent was undercover with the mob, got made by a thug and had to shoot him in self-defense. He reported it to his handler, and went back in and claimed the other guy was the rat, which worked. When he finally came out from cover, he found out his handler never filed paperwork or made a record of it. Turns out she was working for the mob, and if he tried to testify, the mob guys would bring up his killing of the mob guy - which records show he never reported. The idea being to make him subject to prosecution and thus pressure him not to testify, and to taint his testimony if he did.

To me, there’s some similarity of sitaution there. The undercover took action that resulted in a death - whether justified or foreseeable or not. At what point does the legal issue of that death take importance over the ongoing investigation and the need to preserve the cover?

I can’t imagine that Hollywood has created a situation that has not actually occurred in real life. There has to be real life situations that are similar, given the dangerous nature of the business and the kind of thugs that UC find themselves dealing with. If cops end up dead from UC work, then I can imagine situations where they had to kill to stay alive. Though that doesn’t exactly apply in the first case.

8

I’m not sure it’s manslaughter.

If a cop accidentally shoots a bystander in the course of a gunfight, it may or not be a crime – it depends entirely on how reckless his conduct was. It goes without saying he had no intention to kill, so murder is not a possibility. Manslaughter refers to a death caused by criminally reckless behavior. “I simply overlooked this door when checking to see if the house was empty,” is probably not going to rise to the level of negligence necessary to sustain manslaughter.

Felony murder happens when a foreseeable death occurs in the process of committing a felony. Arson certainly qualifies – but was this arson? Police officers that commit acts that would otherwise be crimes for the purpose of maintaining cover, and as part of a sanctioned operation, lack the necessary mens rea to commit those crimes. So this might not have been arson. I didn’t see the show, and the devil is in the details, but it’s possible that this death was a tragedy but not a crime.

9

It was indisputably arson. The undercover cop had asked to be including on some jobs and he was given the job of setting a house on fire as part of an insurance scam. He even acknowledged at the time that what he was doing was illegal but justified it to himself that it was necessary to get inside the gang.

What he didn’t realize was that the gang had planted an unconscious person inside the building who they wanted dead. The victim was killed when the house burned down. It’s now implied that the gang did this intentionally so they’d have a hold on the guy.

10

Interesting. So he looked around the first floor, was chided by the head bad guy and instructed not to bother, was told the family was away and somebody had eyes on them to ensure they didn’t come back. He didn’t do any further investigating after the bad guy left him there for some time (wait till dark) on his own, but had no indications of someone being present - noises or such.

Does it matter that he actually planned to burn the place down?

So you are saying that legally, because he was acting as a police officer for the purpose of establishing his cover, it would not qualify as the crime of “arson” even though he set the fire? Because he was instructed by his contact to get in with the group and to ask to be a part of the arson activity in order to build his cover. So it’s not a crime for him to start that fire, that burns up someone’s house?

Also, the UC didn’t know anyone was there, so is that “foreseeable”?

11

I think Bricker is saying that to commit the crime of arson it’s not enough to just burn something down. You have to have mens rea - or a "guilty mind. From the wiki page

So while he committed the act, it may not be a crime. But I’ll let **Bricker **come back and explain it far better than I. I have no idea if an officer doing something to keep his cover means that he can’t have mens rea.

12

As to this part of the question, I believe the answer is yes. Arsonists are often charged with murder when a firefighter is killed putting out the fire. It seems the likelihood that soomone could be in the house is quite foreseeable.

13

So if he shot someone to maintain his cover, that’s no murder?

14

In Illinois, meteor strike is often the verdict for manslaughter.

Uh, it’s fiction. The writers may not be using a real-life situation if it’s more dramatic or easier.

15

Manslaughter would be something like you were out deer hunting and you shot at some movement in the brush and then found out you had shot another hunter. You might be guilty of manslaughter because you acted in a reckless manner by not waiting until you could see what you were shooting at. But you did not have an intent to commit any crime.

16

Crimes of negligence do not require that you intend to harm anyone; they only require that you intentionally perform an act that you know, or should have known, created an unreasonable risk of harm to another person. In the OP’s scenario, a case could be made for manslaughter or felony murder; I suspect that the success of the “undercover” defense would rely on a balancing test: whether the officer’s limited attempt to clear the house, his reliance on the assurances of his “fellow” criminals, the importance of his case, the risk to himself, etc., outweigh the inherent danger of fire, the criminality of arson, and the negligence of not thoroughly checking out the house himself – in short, whether a reasonable person would conclude that the gain outweighed the risk. Note that one of the factors – reliance on the assurances of criminals – may itself be unreasonable.

17

Does not parse. Try again.

I’m well aware that it is fiction - I have said so in this thread. I am well aware that fiction writers can make shit up. I have said so in this thread. My point is that the situation where an undercover officer commits some type of criminal act as part of developing/maintaining his cover that ends up causing the death of someone seems to be to be plausible enough to have actually occurred in some fashion. Doesn’t mean they drafted the arson case Law & Order style, just that some situation has likely occurred that bears similarity. That is what I am probing.

My actual knowledge is limited. Hollywood would have us believe that UC engage in various and sundry illegal acts in order to establish/protect cover, including drug deals, burglaries and theft, even drug use, yet do not get prosecuted for their acts. What is the justification for said “free pass”? I assume there’s some legal system for dealing with such. Is this where “mens rea” comes in?

As I understand the situation presented, the cop is probably clear of the crime of arson, because he was approved by his handler and was acting to create cover. However, the situation of the death is stickier, and that is what I am investigating.

The description is that manslaughter requires negligent, reckless behavior. There would likely have to eventually be some assessment by the DA regarding what he did and did not do to assess the scene.

Related question: what if a firefighter had been killed? As mentioned, that is a reasonable expectation that it could occur. Sounds like it could be a similar situation.

18

In my opinion (of course what’s important is the DAs and judge’s opinion) it matters that the gang intentionally brought the victim to the house, and lied to the cop.
After all, if the gang pushed the victim in front of a train, the conductor wouldn’t be charged with murder: the gang would.