The Florida Supreme Court . . . finally has changed the rules of evidence. Beginning this month, prosecutors now are required to disclose both a summary of the jailhouse informant's criminal history and just what kind of deal a snitch will be getting in return for testimony. And now, jurors will hear about prior cases that relied on testimony from that particular informant. The justices ordered new restrictions on the much abused informant testimony, because snitches, the court noted, "constitute the basis for many wrongful convictions." It was an unanimous decision. It was about time.
The new rules require greater disclosure of an informant's criminal background, prior history of providing information to the government, and all their deals. Of particular importance, the Florida court included all informants who allege that they have evidence about defendant statements, not merely "jailhouse snitches," i.e., those who happen to be in jail at the time. The new rule also requires disclosure of benefits that the informant "expects to receive" for his testimony, and it defines benefits broadly as "anything...[including any] personal advantage, vindication, or other benefit that the prosecution, or any person acting on behalf of the prosecution, has knowingly made or may make in the future." This is an important counter to the fact that informants know that they are likely to be rewarded for providing information even if no one explicitly promises them anything up front. Thanks to EvidenceProfBlog for calling attention to this important development.
For one former academy student, becoming a covert government operative meant not only betraying the values he vowed to uphold, it meant being thrown out of the academy as punishment for doing the things the Air Force secretly told him to do....Eric Thomas, 24, was a confidential informant for the Office of Special Investigations, or OSI -- a law enforcement branch of the Air Force. OSI ordered Thomas to infiltrate academy cliques, wearing recorders, setting up drug buys, tailing suspected rapists and feeding information back to OSI. In pursuit of cases, he was regularly directed by agents to break academy rules....Through it all, he thought OSI would have his back. But when an operation went wrong, he said, his handlers cut communication and disavowed knowledge of his actions, and watched as he was kicked out of the academy....The Air Force's top commander and key members of the academy's civilian oversight board claim they have no knowledge of the OSI program. The Gazette confirmed the program, which has not been reported in the media through interviews with multiple informants, phone and text records, former OSI agents, court filings and documents obtained through the Freedom of Information Act. The records show OSI uses FBI-style tactics to create informants. Agents interrogate cadets for hours without offering access to a lawyer, threaten them with prosecution, then coerce them into helping OSI in exchange for promises of leniency they don’t always keep. OSI then uses informants to infiltrate insular cadet groups, sometimes encouraging them to break rules to do so. When finished with informants, OSI takes steps to hide their existence, directing cadets to delete emails and messages, misleading Air Force commanders and Congress, and withholding documents they are required to release under the Freedom of Information Act. The program also appears to rely disproportionately on minority cadets like Thomas.
[Defense attorneys] say sheriff's deputies, including one who worked as a "handler" for jailed informants, arranged for informants to be placed next to selected inmates and lure them into making incriminating statements. Deputies and prosecutors then conspired to hide the fact the men were informants from defense attorneys and pretended their encounters were coincidental, despite the longstanding legal requirement that prosecutors turn over information that could help the defense.
Filed in Jailhouse InformantsPermalink
Filed in InnocencePermalink
This article--Bounties for Bad Behavior: Rewarding Culpable Whistleblowers under Dodd-Frank and the Internal Revenue Code--explores the use of the criminal snitch model in the white collar context. Here's the abstract:
In 2012, Bradley Birkenfeld received a $104 million reward or "bounty" from the Internal Revenue Service ("IRS") for blowing the whistle on his employer, UBS, which facilitated a major offshore tax fraud scheme by assisting thousands of U.S. taxpayers to hide their assets in Switzerland. Birkenfeld does not fit the mold of the public's common perception of a whistleblower. He was himself complicit in this crime and even served time in prison for his involvement. Despite his conviction, Birkenfeld was still eligible for a sizable whistleblower bounty under the IRS Whistleblower Program, which allows rewards for whistleblowers who are convicted conspirators, excluding only those convicted of "planning and initiating" the underlying action. In contrast, the whistleblower program of the Securities and Exchange Commission ("SEC") under the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank"), which was modeled after the IRS program, precludes rewards for any whistleblower convicted of a criminal violation that is "related to" a securities enforcement proceeding. Therefore, because of his conviction, Birkenfeld would not have been granted a bounty under Dodd-Frank had he blown the whistle on a violation of the federal securities laws, rather than tax evasion. This Article will explore an area that has been void of much scholarly attention -- the rationale behind providing bounties to whistleblowers who have unclean hands and the differences between federal whistleblower programs in this regard. After analyzing the history and structure of the IRS and SEC programs and the public policy concerns associated with rewarding culpable whistleblowers, this Article will conclude with various observations justifying and supporting the SEC model. This Article will critique the IRS's practice of including the criminally convicted among those who are eligible for bounty awards by suggesting that the existence of alternative whistleblower incentive structures, such as leniency and immunity, are more appropriate for a potential whistleblower facing a criminal conviction. In addition, the IRS model diverges from the legal structure upon which it is based, the False Claims Act, which does not allow convicted whistleblowers to receive a bounty. In response to potential counterarguments that tax fraud reporting may not be analogous to securities fraud reporting, this Article will also explore the SEC's recent trend of acting increasingly as a "punisher" akin to a criminal, rather than a civil, enforcement entity like the IRS. In conclusion, this Article will suggest that the SEC's approach represents a reasonable middle ground that reconciles the conflict between allowing wrongdoers to benefit from their own misconduct and incentivizing culpable insiders to come forward, as such persons often possess the most crucial information in bringing violations of the law to light.
Filed in White CollarPermalink
Four years after Ott was convicted, attorneys at the Wisconsin Innocence Project began working on his case. The Innocence Project, a University of Wisconsin Law School program that investigates allegations of wrongful convictions, called for DNA testing of the semen collected from [the victim's] body. The DNA evidence, which excluded both Ott and Hadaway as possible contributors, matched a convicted serial killer named Walter Ellis who strangled and killed at least seven women between 1986 and 2007.
Filed in InnocencePermalink
This article sketches the socio-legal creation, use, and regulation of informants in the Black community during slavery and the Black community's response at that time. Despite potentially creating benefits such as crime control and sentence reduction, some Blacks today are convinced that cooperation with government investigations and prosecutions should be avoided. One factor contributing to this perspective is America's reliance on Black informants to police and socially control Blacks during slavery, the Civil Rights Movement, and the Wars on Drugs, Crime and Gangs. Notwithstanding this historical justification for non-cooperation, only a few informant law and policy scholars have examined closely the Black community's relationship with informing. Furthermore, even among this small group of works, noticeably absent are historical explorations of Black America's experience with informing during slavery. Drawn using a variety of primary and secondary historical and legal sources, this article develops a snapshot of the past revealing many similarities between the Black experience with informing both while enslaved and in contemporary times. Consideration of these resemblances during present debate on the topic may help to facilitate nuanced conversation as to whether and how the modern Black community and government should approach using informants in current times.This is an important piece of history. As Dennis points out, there has been an underappreciated trajectory from slave informants to the FBI snitches planted in civil rights organizations, to the "Stop Snitching" movement in urban neighborhoods. For a helpful articulation of the relationship between that trajectory and hip hop's glorification of "stop snitching," see Professor Mark Lamont Hill's piece "A Breakdown of the Stop Snitching Movement."
Plaintiffs harmed by informants often have a difficult time holding government actors and agencies responsible in court, since it can be hard to show that the government authorized the informants' bad behavior. For a prominent counter-example, see Estate of Davis v. U.S., 340 F.Supp.2d 79 (D. Mass. 2004) (describing a variety of legal theories under which the FBI might be held liable for murders committed by their informants Whitey Bulger and Stephen Flemmi). With growing scrutiny of and information about the government-informant relationship, the law in this regard may be due for a change.
Filed in InternationalPermalink
"The FBI routinely authorizes its confidential informants to engage in so-called 'otherwise illegal activity' without full disclosure to Congress as to the nature and extent of these crimes," said Congressman Lynch. "By revising the current guidelines governing the use of FBI confidential informants to require the FBI to report to Congress on the specific crimes committed by its human sources, the Attorney General would take a significant step towards ensuring greater accountability, transparency, and safety regarding the administration of Department of Justice confidential informant programs." Lynch, a senior member of the House Committee on Oversight and Government Reform, has continually supported enhanced accountability and transparency in the use of government confidential informants. In the 113th Congress, he has introduced H.R. 265, the Confidential Informant Accountability Act of 2013, legislation that would require all federal law enforcement agencies to report to Congress all serious crimes committed by their confidential human sources. In addition, Lynch has consistently called for the Oversight Committee to conduct hearings regarding the use of confidential informants by the Department of Justice and specifically, the FBI. In the 112th Congress, Lynch, with the support of the Oversight Committee and Senator Charles E. Grassley, led a more than yearlong investigation to examine the relationship between the FBI Boston Division and an individual known as Mark Rossetti. Importantly, the investigation facilitated an internal review of the FBI's Rossetti case files by an FBI Inspection team deployed to Boston in 2011 and confirmation of Rossetti's previous status as a longtime FBI confidential informant.Lynch's letter to Holder can be found here.
Filed in LegislationPermalink
The FBI has special rules governing the authorization of informant crime. Referred to as "Tier 1" and "Tier 2 Otherwise Illegal Activity," handlers can approve the commission of crimes by their informants, as long as the informant does not personally commit perjury or a violent crime. Permissible crimes include: drug trafficking, crimes of violence committed by persons other than the informant, and the provision to a third party of "a controlled substance, an explosive, firearm, or other dangerous weapon...with little or no expectation of its recovery by the FBI." Those rules can be found in the U.S. Dep't of Justice Guidelines for the FBI's Use of Confidential Human Sources.While 5,600 crimes may sound like a lot, this is the tip of the informant crime iceberg. As the USA Today story put it,
Crimes authorized by the FBI almost certainly make up a tiny fraction of the total number of offenses committed by informants for local, state and federal agencies each year. The FBI was responsible for only about 10% of the criminal cases prosecuted in federal court in 2011, and federal prosecutions are, in turn, vastly outnumbered by criminal cases filed by state and local authorities, who often rely on their own networks of sources.In fact, the FBI has some of the best accountability and transparency rules in this area. Many state and local police departments lack guidelines for documenting or authorizing informant crime, leaving it to the discretion of individual officers to decide whether and under what circumstances their informants will be permitted to commit new crimes.
Filed in Informant CrimePermalink
Accused of domestic terrorism in the course of the Chicago NATO summit, Brian Church, Brent Betterly and Jared Chase were arguably victims of police entrapment and the use of "Red Squad" tactics the Chicago police were formerly enjoined from employing....Dubbed the "NATO 3" in media reports, they face maximum sentences of 85 years in prison apiece if convicted, under a decade-old Illinois law that had never been used before. And that was without ever carrying out an attack....Their case is a big one. It's the new face of US counterterrorism investigations - a template for pre-crime arrests, performed through entrapment by police - to stop supposedly dangerous political acts before they happen.
Filed in TerrorismPermalink
[Thirty-year law enforcement veteran Chuck] Drago and [former police commissioner Peter] Keane both believe that the existence of rogue informants for SFPD's specialized Gang Task Force and Narcotics Bureau indicates serious flaws in the department's internal checks and balances. (The SFPD's Narcotics Bureau, Gang Task Force, and Media Relations Office wouldn't comment on the department's handling of violent informants for this story.) "Somebody is dropping the ball in management," says Drago. "SFPD have let loose an unguided missile on the public" by allowing dangerous men like Sandoval (and, as we'll see, at least one other) to stay at large in spite of their offenses, says Keane. "No modern police force with any professionalism engages in that sort of practice anymore."
Filed in Drug-relatedPermalink
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