As part of a plea deal with federal prosecutors in the late 1990s, Charles Bender agreed to cooperate with law enforcement authorities in future investigations. Several months later, Bender reported to the FBI that a fellow prison inmate, William Watson, confessed to a fatal shooting and Bender testified as a prosecution witness against Watson at trial.
Watson appealed his conviction, arguing his Sixth Amendment right to counsel was violated because Bender was acting as a government agent when the two spoke, given his relationship with law enforcement. Today, the District of Columbia Court of Appeals upheld Watson's conviction, finding that although Bender was serving in other capacities as a government informant, he wasn't acting at their behest in Watson's case.
Watson's attorney on appeal, D.C. solo practitioner Jenifer Wicks, argued Bender's agreement to cooperate with the authorities represented an implicit direction by the government to collect information from other prisoners if he had the opportunity.
Judge Peter Glickman, writing for the court, said Wicks "extrapolates too much from too little." The government disclosed Bender discussed Watson with an FBI agent before the two men spoke, but the court found no evidence Bender was "deputized" to collect incriminating information.
"We conclude that the government did not bid Bender, implicitly or otherwise, to engage in freelance investigative sorties on its behalf, nor did the government acquiesce in his doing so," Glickman wrote.
Wicks could not be reached to day for comment. A spokesman for the U.S. attorney's office, William Miller, declined to comment.
According to the opinion, Bender pleaded guilty to participating in a racketeering conspiracy in exchange for having murder and other charges dropped. While in jail, Bender began cooperating with the government in an investigation into drug trafficking and violent crime in a Southwest Washington neighborhood. Watson wasn't a subject of that investigation.
An FBI agent testified Bender brought up Watson when asked during a 1997 debriefing about any violent crimes he was aware of – Bender said Watson was involved in two separate homicides – but the agent didn't know what local homicide detectives did with that information when she passed it along. The agent said she didn't have any other conversations with Bender about Watson until Bender came to her the following year with Watson's confession.
The court found Bender's discussion with Watson would only be unconstitutional if he questioned Watson at the government's request or if the discussion was somehow orchestrated by law enforcement. Even if Bender spoke with Watson in the hopes of currying favor with the government, the court said, that was allowed as long as he questioned Watson "on his own initiative."
Judge Catharine Easterly and Senior Judge Michael Farrell also heard the case.