Yesterday's New York Times, "Unyielding in His Innocence, Now a Free Man," reports on the exoneration of Dewey Bozella. Mr. Bozella spent 26 years in prison for a murder charge that the state now says it has insuffient evidence to prove. From the Times:
The prosecution relied almost entirely on the testimony of two men with criminal histories, both of whom repeatedly changed their stories and both of whom got favorable treatment in their own cases in exchange for their testimony.
There was no physical evidence linking Mr. Bozella to the killing. Instead, there was the fingerprint of another man, Donald Wise, who was later convicted of committing a nearly identical murder of another elderly woman in the same neighborhood.
Filed in InnocencePermalink
A vice president of a multimillion dollar company turns informant to avoid liability, surreptitiously taping his high-level colleagues who are eventually charged with corporate fraud. If this sounds like the plot of the movie "The Informant" (reviewed here), it is. But it is also the plot of this news story about the theft of $2 million worth of fuel from the Mexican oil company Petroleos Mexicanos: "Ex-Bush aide tied to stolen oil case." Here's an excerpt:
Josh Crescenzi of Houston, former vice president for Continental Fuels of San Antonio, has been cooperating with agents of U.S. Immigration and Customs Enforcement for several months, helping them secretly record conversations that have resulted in the conviction of a Houston oil industry executive, another one from San Antonio and the president of a small oil and gas company in Edinburg.
When lower-status drug dealers and users or prostitutes were the main targets [of covert operations,] the tactic tended to be ignored, but when congressmen and business executives who can afford the best legal counsel became targets, congressional inquiries and editorials urging caution appeared.
The Associated Press reports that the federal Immigration and Customs Enforcement (ICE) agency is having the same sorts of informant problems that its FBI and DEA counterparts have long struggled against. Here's an excerpt from the story:
One immigration agent was accused of running an Internet pornography business and enjoying an improper relationship with an informant. Another let an informant smuggle in a group of illegal immigrants. And in a third case, an agent was investigated for soliciting sex from a witness in a marriage fraud case.
These troubling misdeeds are a sampling of misconduct by federal Immigration and Customs Enforcement personnel as the agency seeks to carve out a bigger role in the deadly border war against Mexican drug gangs.
According to documents obtained by The Associated Press under the Freedom of Information Act, ICE agents have blundered badly in their dealings with informants and other sources, covering up crimes and even interfering in a police investigation into whether one informant killed another.
"Wall Street Meets the 'Wire,'" is a post from earlier this week on White Collar Crime Prof Blog, discussing the criminal case against billionaire hedge-fund manager Raj Rajaratnam for insider-trading. Here's a link to the news story on Bloomberg. The post focuses on the unusually aggressive use of wiretaps in the investigation, and asks whether the government was authorized under the federal wiretap statute to do so given the availability of cooperating informants. As the post explains:
Title 18 U.S.C. § 2518(3)(c) provides that a court issuing a wiretap authorization order must determine whether normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. This "necessity requirement" obligates the government to set forth a full and complete statement of specific circumstances explaining why traditional investigative techniques were insufficient or the application must be denied. In determining the sufficiency of an affidavit, a reviewing court must ensure that the issuing court properly performed [its] function and did not 'serve merely as a rubber stamp for the police'. The government is not under an obligation to exhaust all alternative means of investigation in satisfying the necessity requirement but, neither should it be able to ignore avenues of investigation that appear both fruitful and cost-effective.
Given that the government had three co-conspirators, including one as early as January 2006, acting as informants and cooperating witnesses, and that these individuals had unfettered access to Rajaratnam and others involved in the alleged conspiracies, the question arises whether the government deliberately stalled this investigation and actively resisted utilizing normal investigative techniques, hoping to induce the court into believing that only a wiretap could succeed.
This story illustrates the intimate legal relationship between informants and other forms of surveillance. The law privileges informant use, forcing the government to justify its use of wiretaps if informants are available--note that the post refers to snitching as a "normal investigative technique." Moreover, the law permits the government to circumvent the courts entirely and avoid asking for permission to record conversations if it can find an informant who will agree to the surveillance. The usual explanation for this hierarchy is that electronic surveillance is one of the most intrusive forms of investigation and therefore should be a means of last resort. Wiretapping is of course supremely invasive, but this fact obscures the fact that informant use can be similarly intrusive, i.e. when the government threatens friends and colleagues with criminal charges to get them to report on and record people they know. For those who are interested, Chapter Two of the book discusses informant law in detail.
White collar informing shares important characteristics with its street counterpart. Both confer a vast amount of discretionary, unreviewable authority on law enforcement. Both exacerbate power inequalities among potential offenders, as well as between vulnerable offenders and the government. In both arenas, the decision to permit cooperation means that the government is tolerating and forgiving crime, and sometimes even creating an atmosphere in which crime may flourish. And both deprive courts, and thus the public, of significant amounts of power over and information about the operations of the executive.
While this blog is primarily devoted to the policy of using criminal informants, the significance of snitching is deeply connected to drug enforcement. It is largely because drug offenses constitute so much of our criminal system--around 30 percent of state felony convictions among other things--that snitching is such a pervasive phenomenon. Accordingly, big shifts in drug enforcement are big snitching news. The U.S. Department of Justice announced yesterday that it will no longer prosecute medical marijuana users and distributors in the 14 states that have legalized medical marijuana, as long as those users/producers obey state law. New York Times story here. This step represents an important repudiation of the punitive, enforcement-by-any-means-and-at-all costs rhetoric of the past twenty years of federal drug enforcement. Over the summer, writer/journalist Sasha Abramsky predicted in an article in the Nation that "the nation may soon see a gradual backpedaling from the criminal justice policies that have led to wholesale incarceration in recent decades." Monday's announcement might be evidence of just such backpedaling.
Filed in General Criminal JusticePermalink
The Washington Post reports today on the sentencing of Bush White House official David Safavian, former chief of staff at the General Services Administration. Safavian was convicted of lying to federal investigators about thousands of dollars worth of perks and benefits he received from corrupt lobbyist Jack Abramoff. I think it is useful to follow the ripples left by the Abramoff affair because he is the paradigmatic example of what is both great and problematic about snitching. The great version: a bad guy cuts a deal with the government that exposes even worse guys, or "bigger fish," and heightens public awareness of flaws in the system. This is the best argument for offering lenience to serious offenders--on balance it can create a greater public good, and indeed Abramoff's conviction and cooperation has led to numerous other convictions and stronger ethics rules. The problematic version: Abramoff received a four-year sentence for his massive and ongoing corruption, not to mention a lesser sentence on a totally unrelated fraud charge in Florida. Had Abramoff sold a tablespoon of crack cocaine he would have gotten more prison time. Moreover, his cooperation has resulted in convictions of just a few "big fish": Congressman Bob Ney, Deputy Interior Secretary Steven Griles, as well as today's Safavian. While there have been other related convictions, they have mostly been of aides, other lobbyists, or players less powerful and culpable than Abramoff himself. Were these convictions worth letting the poster-child for corrupt lobbying off so lightly? This is the perennial dilemma with snitches: it is very hard to know whether we are actually getting more security and justice by letting them off the hook, or whether we too easily forgive serious wrongdoing in the name of cooperation.
Filed in Dynamics of SnitchingPermalink
Journalism professor and author John Fountain weighs in on the "stop snitching" phenomenon in the Chicago Tribune. He describes urban neighborhoods permeated with fear and insecurity, and takes issue with criticism of residents who are unwilling to talk to police. He writes:
In my experience growing up in an impoverished Chicago community like those under siege, it boils down to an issue of trust. And many who live in the city's most murderous neighborhoods -- who have also witnessed police and political corruption and a trail of broken promises -- simply don't trust the authorities enough to come forward. By doing so, they could be laying their lives on the line. It isn't that people don't want to tell. They do. And it isn't that they aren't concerned about their neighborhoods. They are. But to come forward is to risk everything, even in a world where "safety" is always relative.
Today's Huffington Post reports on the recent death row exonerations of Yancy Douglas and Paris Powell--both men were convicted based solely on in-custody or "jailhouse" snitch testimony. The post was written by John Terzano, president of the Washington D.C.-based Justice Project, which has produced a report on jailhouse snitch use and policy recommendations. Here's an excerpt from the post:
These exonerations highlight the power prosecutors have in securing convictions by utilizing in-custody informant testimony, even when no physical evidence links a defendant to the crime. Testimony by in-custody informants or "jailhouse snitches" as they are often referred, is a leading cause of wrongful convictions. With little to lose, jailhouse snitches have great incentives to provide false information to prosecutors in exchange for leniency or other forms of compensation. Deals that are made between prosecutors and jailhouse snitches do not often come to light when a jury has to weigh the evidence is a case.
Two british rappers have been convicted of obstructing justice for putting an anti-snitching rap song on YouTube. Story here. The two men had been arrested but not prosecuted in connection with a shooting murder last year. While the defendants claimed the song was just gangsta rap, the government argued that "the video had but one purpose--to threaten any witness to this incident to frighten them to such an extent that they would refuse to cooperate with the police."
The U.S. has First Amendment protections for art and speech that the U.K. lacks, which would make it significantly more difficult to prosecute such cases. Here, the government would have a heavy burden to show that the rap song represented a true threat aimed at a particular person and not a more general expression of anti-snitch sentiment. Although I am unaware of any such prosecutions to date, it is only a matter of time. A recent note in the Columbia Journal of Law & the Arts entitled "Can't Stop Snitchin': Criminalizing Threats Made in 'Stop Snitching' Media under the True Threats Exception to the First Amendment," addresses the legal standard. The piece argues that with sufficient specificity, some "stop snitching" songs might lose their First Amendment protection and qualify as threats, although it would be rare. As author Jacob Honigman puts it:
It might be theoretically possible--by recording a song that references a particular person or crime in a manner sufficiently serious enough to indicate that the artist actually intends to commit an act of violence, or by performing a song threatening snitches in front of a courthouse as a trial is scheduled to begin--for a hip-hop artist to cross the true threat line. But I am not aware of any such instance. This, combined with the tradition of affording all forms of music, including rap, full First Amendment protection, make it extremely unlikely that such a statement could be criminalized.
More generally, the First Amendment has not prevented rap lyrics from being used against their authors as criminal evidence. Rap songs have been admitted as evidence to show a defendant's intent or knowledge or as confessions of past criminal acts. Law Professor Andrea Dennis wrote an article on the phenomenon entitled "Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence," in which she argues that courts misapprehend the artistic significance of rap lyrics when they treat them as simple admissions of guilt or factual descriptions of a rapper's life.
Yesterday on CNN, Anderson Cooper reported on the terrible story of 16-year-old Derrion Albert who was beaten to death by four other teenagers in Chicago. The beating was captured on videotape--story here. Four people have been charged so far. Police Superintendant Jody Weis told Cooper that no one has come forward to identify three other potential perpetrators, even though numerous people witnessed the event. Weis stated, "We are literally getting killed by this code of silence, this no-snitching rule. We've worked hard to overcome it." Cooper responded as follows:
This is something we focused on a lot on this program over the years. I did a piece on 60 Minutes about it as well. This whole stop snitching effort, rappers are telling people don't be a snitch. And now the definition of a snitch is not just somebody who is involved in a crime and tries to rat out someone else they were involved with. Now there's this horrible definition of being a snitch is anybody who comes forward and talks about a crime they've seen. That's just the mentality that cannot be tolerated.
The "stop snitching" phenomenon turns out to be complex, deep-seated, and long-standing. It did not begin with a DVD or a rap song, nor will it end when ["stop snitching"] t-shirts go out of style. It is simultaneously a criminal code of the street, a reflection of widespread communal distrust of police, as well as, more recently, a tool of intimidation against civilian witnesses. While the phenomenon was born in the penal system, it has spread beyond its criminal roots, a product of the multifaceted challenges of urban crime, gang violence, race, drugs, and policing through criminal informants.
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