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Tuesday, January 27, 2004 - Page updated at 12:00 AM

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Guest columnist

Deception and morality: the Athan investigation

Special to The Times

Deception is morally suspect, especially when used in law-enforcement investigations. Many crimes, however, would not be prosecuted without the use of sophisticated undercover techniques.

"Crimes of the privileged" almost always lack individual victims to report the wrongdoing (tax evasion), or there are individual victims understandably reluctant to report the conduct (extortion). We can now add to that list a more traditional crime and victim: murder and the murdered.

Thirteen-year-old Kristen Sumstad was sexually assaulted and killed 21 years ago in the Magnolia area of Seattle. The crime went unsolved until modern technology matched a DNA sample taken from her body to that of John Nicholas Athan.

Last week, Athan, now 35, was convicted of second-degree murder for Sumstad's death. The case has drawn attention because of the manner in which detectives retrieved a DNA sample from the defendant. Police pretended to be members of a local law firm and wrote Athan soliciting him to join a class-action lawsuit by signing and mailing a letter back to them in Seattle. They recovered his DNA in the saliva on the envelope.

Athan's attorney says he will argue on appeal (as he did to the trial court) that this "ruse" was illegal and unethical. King County Superior Court Judge Sharon Armstrong allowed the evidence.

The related, but nonetheless separate, question is whether the investigation was moral.

An undercover operation is ethical, assuming traditional investigative techniques fail, when it is used to investigate a proper subject, who is deceived only in ways that do not subject him or her to unwarranted privacy invasions, while third persons are deceived (or otherwise harmed) only in insignificant (or compensable) ways.

The most fundamental consideration is the adequacy of the government's efforts in ensuring that the subject is a legitimate suspect — someone who has consciously and freely decided to commit a crime — before undertaking an investigation of that individual.

This is a necessary predicate for any legal criminal investigation, but it is also closely related to the second moral factor: no unwarranted invasion of the suspect's (or any other person's) private self.

Finally, we must consider the harmful effects of the operation on innocent third parties.

Consider the simplest of undercover scenarios: prostitute and customer. If the "prostitute" is really an undercover agent, the customer is deceived only in a way that subjects him to official evaluation when he knew in advance that such evaluation was a possible consequence of his action.

The customer knew he was subjecting himself to potential evaluation by transmitting certain knowledge to persons who had the authority to evaluate him. No third party was deceived or harmed in a morally significant way.

Passersby on the street did, indeed, see a person who appeared to be a prostitute but who was in reality an undercover agent. But this "deception" to the third party was no more significant morally than the sight of a man walking down the street holding in his stomach. Those persons uninterested in the services of the prostitute, and equally uninterested in the anatomy and physical prowess of the abdomen of the gentleman, had no expectations one way or the other as to the truth of either proposition.

Americans cherish the distinction between public and private life. The public realm is a life of formal exchanges — whether domestic, proprietary, civil or criminal.

Paradoxically, our public realm guarantees that individuals can flourish in the private realm, either alone or in private relationships with others.

In deciding to commit a crime (or in deciding to act at the fringe), one makes a conscious decision to enter, in part, the realm of formal roles and relationships.

In this case, Athan had no legitimate moral claim to an interest in his saliva once it left his body, whether by depositing it on an envelope or on the street. He had, at least, a lowered privacy expectation. No third parties were harmed by the deception.

To be sure, when the undercover agent takes on roles given special status in our culture — priest, counselor, attorney — special care must be taken so that no violation of the values protected by those particular roles occurs. Thus, it is important for law enforcement to place emphasis on the original design of sensitive undercover operations.

Here, it appears King County did just that. While agents posed as members of a law firm, no secrets were passed; except, of course, for the secret told by Athan's DNA sample.

James R. Murray is a trial lawyer in Seattle. In the 1980s he was special assistant to FBI Director William H. Webster and reviewed all proposals for major undercover operations.

Copyright © 2004 The Seattle Times Company

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