Entrapment test clear, but glitch may muddy it

Entrapment test clear, but glitch may muddy it »Play Video

PORTLAND, Ore. - After the teenager accused of devising a plot to blow up a bomb at last Friday’s tree lighting ceremony pleaded not guilty to the charges Monday, his lawyers said they will raise the question of whether their client is a victim of FBI entrapment.

But what kind of defense would lawyers for 19-year-old Mohamed Osman Mohamud need to build?

According to legal experts, it comes down to whether the suspect had a predisposition to commit acts of terror. In other words, was he thinking and planning to carry out a plan before he began talking with federal agents or did they plant the seed? What is critical, however, is the very first meeting between Mohamud and the federal agents and whether it was the agents who first suggested the attack.

“If instead what happened is that he came into the meeting wanting to blow up people, and this was simply the undercover operatives giving him the opportunity, advice and so on, then that’s not going to work for an entrapment defense,” said Tung Yin, a professor at Lewis and Clark Law School and an expert on war on terror law.

He said the “government cannot implant or induce the idea.”

The FBI recording equipment malfunctioned during that initial meeting and so the accusations that Mohamud wanted to commit acts of terror come only from the undercover agent’s own words.

But the government says it does have earlier e-mails in which Mohamud says he wants to commit holy war, and U.S. Attorney General Eric Holder said Mohamud was “given a number of opportunities to desist from his course of action but who at every turn decided that he wanted to continue.”

The lack of a recording, however, could muddy up what experts say is a clear test for entrapment. Defense attorney John Henry Hingson III said that first meeting with Mohamud is legally critical and the absence of video proof is something a jury could latch onto.

“Recording devices when they malfunction create all sorts of suspicion,” he said.

Lawyers for Mohamud say they’ll try to get some of the government’s evidence against him thrown out.

Also an issue in the case is why the FBI didn’t arrest Mohamud earlier. Both Yin and Hingson said it’s the government’s burden to prove the case beyond a reasonable doubt and that probably spurred agents to follow the ruse all the way through.

Experts also say the issue of entrapment will ultimately be up to a jury.