Witness intimidation is a serious problem in many drug and gang-related investigations. When prosecuting certain defendants, the government needs to be able to protect its witnesses from threats and intimidation. At the same time, most defendants pose no threat to witnesses, and defendants are constitutionally entitled to know who will testify against them and to get material evidence about those witnesses. The Court of Appeals of Maryland, the state's highest or 'supreme' court, recently issued a thoughtful decision that highlights many of the tensions inherent in these two competing concerns. In Lancaster v. Maryland, in an armed robbery prosecution, the Court held that the trial judge erroneously permitted the government to withhold the names of key witnesses from the defendants before trial. The Court concluded that the government failed to support its contentions that the witnesses had been threatened or that the jailed defendants posed a substantial threat. The Court wrote:
The State failed to present any evidence regarding specific threats from Lancaster, his brother, or their associates, against the witnesses. No evidence was presented regarding Lancaster's reputation for violence . . . The state also failed to identify any persons who might have carried out the alleged threats against the witnesses as Lancaster and his brother were incarcerated at the time. . . . We further conclude that the protective order in effect tied defense counsel's hands and foreclosed him from pursuing a valuable source of information for cross-examination of the State's witnesses.The government had withheld the names of four witnesses: two of those witnesses were accomplices in the robbery and received light sentences in exchange for their cooperation, a fact that the defendants did not learn until trial.
By contrast, in Coleman v. State, an earlier Maryland case, the Court concluded that the trial judge properly withheld witness names from the defendants. In Coleman, the defendants were part of a gang that had threatened witnesses, there was evidence of specific threats against witnesses, and the defendants in the case were accused of murder.
Informant practices are inherently secretive: snitches often need their identities protected for safety, while the effectiveness of informant-driven investigations turns on their clandestine nature. But the secretive effects of using informants go far beyond ongoing investigations or protecting particular informants' identities. Snitching has altered the ways that investigations are conducted and recorded; it affects public record-keeping by police and prosecutors, discovery practices, and what gets written down during plea negotiations. It has also shaped the informational rules prescribed by Supreme Court doctrine, internal judicial branch information policies, and even information-sharing between the Department of Justice and Congress. In other words, the pressure to conceal informant practices broadly affects the criminal system's culture of record keeping, adversarial information-sharing, public policy and disclosure, making the entire process less transparent and accountable.
Filed in Informant LawPermalink
In 1992, Mark Whitacre was vice president of operations at agribusiness giant Archer Daniels Midland, handling hundreds of millions of dollars worth of contracts and overseeing the production of lysine, a key corn-based ingredient in animal feed. At the same time, for nearly three years Whitacre worked with the FBI to obtain evidence implicating ADM in a massive international price-fixing scheme. As do most informants, however, Whitacre had issues. He was factually unreliable, personally unstable, and--without giving away the story--engaged in a few shenanigans of his own. The New York Times calls the movie "a smart, cynical comedy" about greed and corporate malfeasance, and it certainly is. But the story of how the federal government came to believe, rely on, adore, distrust, despise, and ultimately discard Whitacre as an informant is also a whirlwind tour through many of the benefits and dangers of real-life informant use.
The Informant, starring Matt Damon, opened this weekend and it is based on Kurt Eichenwald's best-selling non-fiction book of the same name published in 2000. The book, which weighs in at a whopping 550 pages, is an exhaustively detailed journalistic expose of the seemingly incredible facts of Whitacre's cooperation with the FBI. While the movie is a comedy, with plenty of chuckles at the topsy-turvy quality of Whitacre's personality and the resulting ups and downs of the ADM investigation, the book is more disturbing than funny. It offers an up-close view of how heavily the government depended on Whitacre, its inability to control or adjust to his deviations, how ADM's money and political influence shaped the legal outcomes of the investigation, and how justice got deeply twisted along the way. As a factual matter, the film tracks the book relatively closely, and so while people may leave the movie theater shaking their heads over the craziness of it all, they would do well to take the underlying revelations of the film seriously. The Informant points to some very non-fictional truths about the productive yet dangerous marriage of convenience between the government and its informants. Here are a few take-aways:
Cracking Big Cases. If nothing else, The Informant makes abundantly clear why law enforcement goes through the trouble of cultivating informants: they are often the only way to crack big cases against politically powerful or otherwise hard-to-penetrate organizations such as corrupt corporations, drug rings, or terrorist groups. The FBI's storied history with its mafia informants is a case in point. On the one hand, informants with names like "Sammy the Bull" Gravano enabled the investigation and prosecution of some of the most powerful mafia figures in history--including John Gotti--and over the years helped the government undermine the power of the mob. On the other hand, the FBI's habit of letting its informants commit serious crimes like murder, racketeering, and money laundering has given snitching a bad name, and subjected the FBI to heightened scrutiny, congressional disapproval, and millions of dollars in civil liability.
Unreliable. At the end of the movie's preview, Mark Whitacre casually informs his lawyers (and by implication the audience) that "I haven't been telling you guys the whole truth." This might be the biggest understatement of the movie, and it reflects the more general truth that informants are deeply unreliable sources of information. For example, the Center for Wrongful Convictions at Northwestern University Law School reports that 45.9 percent of documented wrongful capital convictions have been traced to false informant testimony, making "snitches the leading cause of wrongful convictions in U.S. capital cases." Several states, including California, New York, Texas, and Illinois, have considered or implemented new laws to restrict the use of unreliable informant witnesses.
"Falling in Love with Your Rat." This is how one federal prosecutor in New York describes the fact that law enforcement officials can become so dependent on their informant sources that they develop personal attachments to them and lose their objectivity. This attachment can impede the government's evaluation the real usefulness or reliability of their long-term sources. Mark Whitacre's FBI handlers, for example, grew so fond of him that they carried around photos of him and his family--a fondness that eventually blindsided them.
Vulnerable Informants. Like most informants, Mark Whitacre was also a vulnerable person. First and foremost, he was vulnerable to retribution from ADM--the company against which he cooperated. The threat of retribution and potential violence against cooperators is a widespread problem, particularly in gang-related cases. While the federal WITSEC program is well known and well funded, most states have few or no resources to protect or support witnesses who risk their security by cooperating.
Whitacre was also vulnerable in other ways which I won't disclose, but that, as the book describes in detail, made his FBI handlers very uncomfortable with the eventual resolution of the investigation. While Whitacre was hardly a typical snitch, his predicament reflects the widespread reality that informants, like the criminal justice population more generally, are often vulnerable people: young, frightened, undereducated, suffering from substance abuse or mental health problems. Their weaknesses make them more easily pressured into cooperating, and less able to make self-protective decisions, and the criminal system has almost no mechanisms to protect them. In recognition of this fact, Florida recently passed first-of-its-kind legislation entitled "Rachel's Law" (see previous post) which extends some much-needed protections to people who become informants.
While using criminal informants can produce bad evidence and even sometimes more crime, the snitching phenomenon is problematic in other, more complex ways. Criminal snitches themselves are often vulnerable people--they may be young, undereducated, or suffering from substance abuse or mental disabilities. Indeed, this is true more generally for the majority of people in the criminal system. When police pressure such suspects to cooperate, many people feel as if they have no choice, even if cooperating is not in their best interests. Last year, 23-year-old Rachel Hoffman became an informant in Tallahassee, Florida, trying to avoid jailtime for her possession of a small amount of drugs. Police sent her on a sting operation during which she was killed. Her death triggered an outcry and resulted in ground breaking legislation to regularize the process by which police turn people into informants. My op-ed on the new law is published here in the Daily Journal, and it describes some of the law's features:
[It] creates new, basic mechanisms to protect informants and to increase police accountability. For example, Rachel's Law requires law enforcement agencies to establish policies and procedures, including recordkeeping rules, to guide police when they turn a suspect into an informant - essential regulations that most United States police departments lack. The law also requires police to tell suspects that police cannot make promises about what charges will be filed or dropped in exchange for cooperation - only a prosecutor can do that. Police must also consider an informant's suitability - including their age, maturity, and risk of physical harm - before entering into an agreement. This last requirement is a nod to the fact that many experts concluded that Rachel Hoffman was unsuited to the dangerous task that police assigned her.
A federal judge has ordered a new trial for four drug conspiracy defendants because the government permitted its lead witness--a criminal informant who received lenience in exchange for his testimony-- to lie on the stand. Chicago Tribune story here. Prosecutors have a well-established constitutional obligation not to permit false testimony-- such conduct violates the defendant's right to due process. This case is unusual in part because it is typically very hard to prove informant falsehoods to the satisfaction of a court; the violation here occurred and was litigated during the trial. In this case, the informant Senecca Williams testified that he had witnessed the defendants packaging and discussing drugs during 2002-2003, a period during which he was actually incarcerated and could not have witnessed those things. Williams also testified that the 2002 events took place in "the Granville apartment," whereas in fact defendant Freeman did not occupy that apartment until at least a year later and one defendant, Wilbourn, was never there at all.
The government maintained throughout that Williams was being truthful and that the government stood by his testimony. In concluding that the prosecutors engaged in misconduct, U.S. District Judge Joan Lefkow wrote:
It is well established that the prosecution may not use testimony it knows to be false. . . . The court cannot accept the government's glib assertion  'that Williams was at most merely mistaken about the dates of the occurrences about which he testified.' For Williams's testimony was false not only because the drug-related activities involving [defendant] Wilbourn that Williams recounted as occurring in late 2002 and early 2003 could not have taken place during that time period, but also because those events could not have occurred where Williams claimed they took place--the Granville apartment in which Wilbourn was never present.
The Washington Post reported yesterday that the NATO airstrike that killed numerous Afghan civilians was based on intelligence received from a single informant, in violation of command policy. According to the Post:
The decision to bomb the tankers based largely on a single human intelligence source appears to violate the spirit of a tactical directive aimed at reducing civilian casualties that was recently issued by U.S. Gen. Stanley A. McChrystal, the new commander of the NATO mission in Afghanistan. The directive states that NATO forces cannot bomb residential buildings based on a sole source of information.
The civilian equivalent to the McChrystal directive is the corroboration requirement, which comes in a variety of forms. A dozen or so states have an accomplice corroboration requirement stating that no defendant can be convicted based solely on the uncorroborated testimony of an accomplice. Texas has a relatively new and important informant corroboration requirement which prohibits the conviction of any drug defendant based solely on the testimony of a single informant. Texas promulgated its rule after the 1999 Tulia debacle, in which a single undercover narcotics agent falsely charged a large percentage of the town's black population, many of whom were convicted without any corroborating witnesses or evidence. The California legislature has twice passed legislation that would require corroboration for jailhouse informants--Governor Schwarzenegger has vetoed it both times. And while criminal snitches have unique problems that distinguish them from military, national security, and other kinds of informants, all classes of informants share deep unreliability risks. The NATO airstrike provides yet more evidence of the value of having and honoring corroboration requirements.
In this extensive New Yorker article, reporter David Grann tells the story of how Texas prosecuted and executed Cameron Todd Willingham for the alleged arson murder of his three children. Willingham always insisted on his innocence, and recent forensic evidence indicates that the fire was in fact an accident. A Texas government commission is reviewing the case--as Grann puts it, if the commission concludes that Willingham did not set the fire, "Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the 'execution of a legally and factually innocent person.'"
There were two controversial kinds of evidence used at Willingham's trial. The first and most important was the state expert's opinion that the fire was intentionally set. The second was the testimony of Johnny Webb, a jailhouse snitch with drug and mental health problems, who was hoping to "get time cut" off his robbery and forgery charges and who testified that Willingham confessed to him. Eight years after the trial, in 2000, Webb recanted his testimony, but within months he recanted again. Here are a few excerpts from the story describing Webb.
Not long after Willingham's arrest, authorities received a message from a prison inmate named Johnny Webb, who was in the same jail as Willingham. Webb alleged that Willingham had confessed to him . . .During Willingham's trial, another inmate planned to testify that he had overheard Webb saying to another prisoner that he was hoping to "get time cut," but the testimony was ruled inadmissible, because it was hearsay. . . . [Years later, in 2009, reporter David Grann interviewed Webb.] After [Grann] pressed him, [Webb] said, "It's very possible I misunderstood what he [Willingham] said." Since the trial, Webb has been given an additional diagnosis, bipolar disorder. "Being locked up in that little cell makes you kind of crazy," he said. "My memory is in bits and pieces. I was on a lot of medication at the time. Everyone knew that." He paused, then said, "The statute of limitations has run out on perjury, hasn't it?"
The New Yorker story is centrally about the role of bad forensic expertise, and it highlights similarities between experts and informants. Both are paid and controlled by one side, both have a stake in the outcome, and both offer testimony that is difficult to cross examine or rebut. Professor George Harris wrote an article on these similiarities entitled "Testimony for Sale: The Law and Ethics of Snitches and Experts," in Pepperdine Law Review, in which he argues that experts and snitches alike should be subject to more rigorous controls and adversarial testing. In particular, he offers a proposal, on which I expand in my book, to create "defense informants," i.e. informants who could testify for defendants and receive the same kind of benefits that informants can now receive only by testifying for the prosecution.
Legislation, Litigation, Reports & Scholarship
Comprehensive resource site for lawyers, journalists, government officials & the public.