• SNITCHING: Criminal Informants and the Erosion of American Justice
  • U.S. Attorney General's Guidelines on the FBI's Use of Confidential Human Sources
  • Sarah Stillman, The Throwaways, The New Yorker (2012) (article on the use of juvenile informants)

Recent Blog Posts

Saturday, December 11, 2010

Afghan drug lord was paid CIA and DEA informant

From today's NY Times "Jailed Afghan Drug Lord was Informer on U.S. Payroll":
When Hajji Juma Khan was arrested and transported to New York to face charges under a new American narco-terrorism law in 2008, federal prosecutors described him as perhaps the biggest and most dangerous drug lord in Afghanistan, a shadowy figure who had helped keep the Taliban in business with a steady stream of money and weapons. But what the government did not say was that Mr. Juma Khan was also a longtime American informer, who provided information about the Taliban, Afghan corruption and other drug traffickers. Central Intelligence Agency officers and Drug Enforcement Administration agents relied on him as a valued source for years, even as he was building one of Afghanistan's biggest drug operations after the United States-led invasion of the country, according to current and former American officials. Along the way, he was also paid a large amount of cash by the United States.
For more on the increasingly common terrorism/drug informant connection, see David Headley: another drug/terrorism informant works both sides.

Wednesday, December 1, 2010

Ninth Circuit overturns murder conviction based on perjured informant testimony

Yesterday, in Maxwell v. Roe, the Ninth Circuit decided that Bobby Joe Maxwell's due process rights were violated in 1984 when the government used Sidney "the Snitch Professor" Storch as the main witness at his multiple homicide trial. LA Times story here: Appeals Court overturns murder convictions of alleged L.A. serial killer.

This is an important case for a number of reasons. The first is historical: Storch was one of the most infamous jailhouse snitches in the Los Angeles County Jail during the 1980s, a period in which jailhouse snitch fabrication was rampant, numerous wrongful convictions occurred, and which eventually triggered a massive Grand Jury investigation and stringent reforms in Los Angeles.

The factual basis for the decision is also important. Appellate courts rarely conclude as a factual matter that a witness such as a jailhouse informant committed perjury, which is one of the reasons it is so difficult to overturn a conviction even after a witness recants. See previous post: In the news-- Recantation. In this case, the Ninth Circuit decided that "it was objectively unreasonable for the Superior Court to find that Storch testified truthfully at the 1984 trial," based on Storch's history as an informant and his other lies at trial. From the opinion:
There is simply too much evidence of Storch's pattern of perjury to conclude otherwise. At the time of Maxwell's trial, Storch was already employing the "booking" formula that he would later teach others and for which he would become famous; the housing records show that Storch had physical proximity to Maxwell; Storch openly admitted that he was in possession of a newspaper article about the murders; the newspaper article itself mentioned all of the specific facts to which Storch testified--namely, that the police had found Maxwell's palm print on a nearby park bench; and, finally, Storch contacted Deputy District Attorney Sterling Norris with the news of his cellmate's spontaneous confession and negotiated his own deal in exchange for his testimony.
In other words, it was just too likely that Storch was lying for the government to use him. As our knowledge of jailhouse informants increases, there may be more informants who fit this too-unreliable-to-testify profile.

Finally, the case has doctrinal significance. The court held that the use of Storch at trial violated Maxwell's due process rights. This was in large part because Storch was the "'make-or-break' witness for the state" and "the centerpiece of the prosecution's case" and therefore his testimony was clearly material to the outcome of the trial. Notably, the court assumed for the sake of argument that the government did not know that Storch was lying -- the due process violation flowed not from any intentional government misconduct, but because "to permit a conviction based on uncorrected false material evidence to stand is a violation of a defendant's due process rights." This is an important rule -- it is not uncommon for defendants to discover post-trial evidence that a key informant witnesses lied--either because of recantations or other impeachment evidence. See for example this post: More on the Spokane convictions. The Maxwell decision suggests that courts may be starting to take such evidence of informant perjury more seriously.

Tuesday, November 23, 2010

The debate over domestic terrorism informants

For the debate over the FBI's practice of sending paid informants into Muslim communities to ferret out domestic terrorists, compare these two pieces in the wake of the conviction of four men in Newburgh, NY:
From Slate: The Pathetic Newburgh Four: Should the FBI really be baiting sad-sack homegrown terrorists?
"Why does the government's anti-terror net catch such unconvincing villains: black men near mosques who, in exchange for promises of money, sign on to knuckleheaded schemes that would never exist if it weren't for the informants being handsomely paid to incite them? [One of the] supposed plotter[s], a Haitian, was a paranoid schizophrenic (according to his imam), which was the reason his deportation had been deferred (according to The Nation's, and who kept bottles of urine in his squalid apartment (according to the New York Times). The last two, both surnamed Williams, have histories of drug busts and minimum-wage jobs in Newburgh. At trial the government asserted that the plot was driven by anti-American hatred. But in papers filed in court by defense lawyers before the trial began, Cromitie is quoted in government transcripts explaining to Hussain that the men "will do it for the money. ... They're not even thinking about the cause."
From Business Week: NY Bomb Plot Convictions Vindicate Use of Informant
"The convictions of four men for conspiring to bomb New York synagogues vindicated the post-9/11 strategy of using an informant to identify individuals deemed likely to engage in terrorism and encourage them up to the point of arrest, legal experts said. After being approached by one defendant who said he wanted "to do something to America," the informant testified, he sought to gain their trust, urging them forward with gifts, scouting targets with them and eventually supplying them with dud bombs. Undercover informants played similar roles in three other recent terrorism cases, helping develop, then foil alleged plots to detonate a bomb near Chicago's Wrigley Field, attack a federal courthouse in Illinois and blow up a Dallas skyscraper."

FOX on the informant market

Here's a general story that ran yesterday on FOX in Memphis, Tennessee-- Informants Cashing in on Snitching. The piece focuses on informants, particularly drug informants, who earn money as well as leniency for their own offenses, and it highlights the informality and lack of rules that characterize the world of paid criminal snitching. From the story:
"Most of the informants we develop, are involved in criminal activity. You get your best information from people who have knowledge of the crimes or are being involved in committing the crimes," said [Sgt. Clay] Aitken [of the Shelby County Sheriff's Office.] Records on the number of informants and what they're paid is not made public by the sheriff's office. Aitken says informants are paid with seized drug money, not taxpayers' dollars. "I've seen informants get paid anywhere from $50 to thousands of dollars. But there's no set rate or set fee," said Aitken.
One of [the reporter's] law enforcement sources who has worked directly with informants, says he's personally seen a Mid-South informant get handed $50,000 cash for one tip that led to a huge drug bust but that's nothing compared to what the Feds can offer and he says informants have been known to shop their information around selling it to the highest bidder.

Tuesday, November 9, 2010

David Headley: another drug/terrorism informant works both sides

According to the New York Times, David Headley, drug-dealer-turned-informant-turned-terrorist, was working for the DEA while collaborating with Pakistani terrorists who eventually attacked Mumbai, India in 2008. Headley has pleaded guilty to his role in that attack, and is currently cooperating with the government in an effort to avoid the death penalty. Story here: DEA Deployed Mumbai Plotter Despite Warning. Part of India's anger over the incident stems from the fact that the DEA had been warned repeatedly by several people who knew Headley that he sympathized with terrorist groups, but, ignoring the warnings, the DEA nevertheless persuaded a court to take Headley off probation and sent him to Pakistan in 2001. From the Times:
In recent weeks, United States government officials have begun to acknowledge that Mr. Headley's path from American informant to transnational terrorist illustrates the breakdowns and miscommunications that have bedeviled them since the Sept. 11 attacks. Warnings about his radicalism were apparently not shared with the drug agency that made use of his ties in Pakistan.
The director of national intelligence, James R. Clapper Jr., began an investigation into Mr. Headley's government connections after reports last month that two of the former drug dealer's ex-wives had gone to American authorities between 2005 and 2008, before the Mumbai attacks, to say they feared he was plotting with terrorists. Combined with the earlier warning from the former girlfriend, three of the women in Mr. Headley's life reported his ties to terrorists, only to have those warnings dismissed.
An examination of Mr. Headley's story shows that his government ties ran far deeper and longer than previously known. One senior American official knowledgeable about the case said he believed that Mr. Headley was a D.E.A. informant until at least 2003, meaning that he was talking to American agencies even as he was learning to deal with explosives and small arms in terrorist training camps.
An NPR story this morning explains the breakdown in official communication by noting that the DEA would have been protective of its informant and unlikely to share his identity with other agencies, Warnings Overlooked in Case of American Tied to Mumbai Attacks. But this is only part of the story. As the Times points out, the DEA ignored the warnings precisely because Headley was a long time and valuable informant. This is the same blindspot that earlier this year led CIA officials to bring a prized informant to a base in Afghanistan, only to see him turn suicide bomber -- see Afghan suicide bomber was informant-double-agent.
This debacle illustrates the significant costs of the criminal informant compromise. First, informants avoid punishment for their own crimes--Headley served less than two years in prison although he could have faced up to nine years for distributing 15 kilograms of heroin. Second, as the government grows increasingly reliant on its criminal sources, officials come to tolerate informant crime, double-dealing and inaccuracy as a routine part of the compromise. Because the dominant culture of informant management is one of secrecy, even as between government agencies, this further weakens the process of intelligence-gathering, information-sharing, and law enforcement. Since the government maintains that it cannot conduct the war on terror without informants, it is time to rethink the rules of this risky public policy.

Wednesday, November 3, 2010

Thanks to Eric Miller

Many thanks to Eric for all his work and insights.

Tuesday, November 2, 2010

Farewell Post

This is my last post as a guest blogger. I have greatly enjoyed the opportunity to think deeply about the problems of snitching and policing. Today I want to thing about the dangers inherent in becoming an informant.

The stop snitching movement normally focuses on the cost of snitching to the community. However, two recent cases suggest that the cost of informing can be high because the police insufficiently protect their informants. In the most recent case, from Missoula, Montana, police officers reportedly pressured Colton Peterson, a mentally ill marijuana grower to "work as a 'cooperative defendant,' gathering string on potentially more serious drug dealers in the area, and in exchange police would tell prosecutors he had cooperated with the investigation." Peterson committed suicide, in part, his family claim, because of the pressure to snitch. In another case, police in Tallahassee, Florida, arrested Rachel Hoffman, a college student, "for drug possession and … g[a]ve[ her] the opportunity to avoid multiple felony charges by acting as a confidential informant for the police." She was told to purchase drugs, including cocaine, from local drug dealers, but was killed during the undercover operation.

In each case, the police appeared to be more concerned to turn non-violent marijuana users into snitches than ensure their safety. In each case, vulnerable young individuals were preyed upon by police not simply to turn states evidence, but to go back into the field as undercover informants, in Hoffman's case to buy harder drugs than she used, as well as to purchase a handgun. In each instance, the police were criticized for their lack of training in using informants.

Thanks again to Alexandra Natapoff for the opportunity to contribute to this blog.

Tuesday, October 26, 2010

Video-Taping Policing

A recent snitching-related phenomenon has seen citizens secretly recording police activity. Different types of recording devices have been used, from the omnipresent mobile phone, to cameras mounted in cars or, in a recent case filed in Maryland, a motorcycle helmet. The police, however, are fighting back: in Maryland, an officer caught on a tape posted on YouTube sued the arrestee under a wiretap statute for recording the encounter that led to the arrest.

While the judge ultimately threw out the case, the Maryland police are not alone in arresting individuals who record or watch them do their job. In fact, the subtext of a recent Supreme Court case, Devenpeck vs. Alford, 543 U.S. 146 (2004) concerned a police officer who (wrongfully) arrested a suspect for tape recording the arrest.

Citizens taping cops can fit the definition of snitching, if the citizen plans to use the tape to gain lenience or drop the charge. It also fits one scenario in which subjects have proved more willing to inform on lawbreakers: when the wrongdoer is a police officer.

Why do the police react so negatively to citizen video-taping? After all, the police themselves use dashboard-mounted cameras in police cars that capture traffic stops. In part, the police do so because they believe having an accurate record of the stop will most often support the officer's version of events and undermine some of the negative attitudes towards the police.

One reason might be that citizen-sponsored videotaping (as opposed to police-sponsored taping) is a direct challenge to police control and authority. Since much of the stop-snitching phenomenon is a reaction to community perceptions of antagonistic policing or forcible policing that distances the police from the community and uses criminal informants to target low level crimes, citizen videotaping is a means of redressing the balance, by creating a record of what the police, in fact, do.

Police overreaction to citizen videotaping is best understood as a demand for a display of respect for and deference to the police. It highlights the distinction between consensual policing, of the sort that treats citizens with respect as equals, and the sort of adversarial posture that relies on criminal informants to the detriment of communication and community relations.

Tuesday, October 19, 2010

Mandatory Time Off for Informants in Protective Custody?

Here's a snitching development from New South Wales, in Australia:

"The New South Wales Government says criminals who give evidence against other criminals will not automatically get reduced sentences because of the hardship they suffer in jail.

Attorney-General John Hatzistergos says they will get a discount for providing information to police but not an additional discount for the extra hardship they may suffer."

The New South Wales system gave two automatic discounts to jailhouse informants. These might be characterized as the direct and collateral benefits for informing (on the lines of direct and collateral penalties at sentencing). The direct benefit was time off for the nature and quality of the information given; the collateral benefit was to compensate them for hardships suffered through requiring protective custody. Like direct and collateral penalties, one is clearly related to the criminal's act (in the case of punishment, the crime; in the case of informing, cooperation with the government); another is regarded as regulatory in nature. In the case of punishment, there is a whole range of collateral penalties, ranging from losing the right to vote, to deportation (for eligible foreign nationals), to losing public housing, health care or welfare eligibility. In the case of informing, New South Wales treats protective custody as regulatory, and so as a matter of ensuring safety and security within prisons, rather than as an additional punishment consequent to informing.

It is unlikely that the American system would treat this type of direct/collateral benefit as legally significant. After all, the decision to reward the informant with some sentencing recommendation is well within the discretion of the prosecutor. And it's well established that decisions regarding protective custody are regulatory rather than punitive. But New South Wales apparently had a mandatory award of time off for informants for protective custody. Apparently, the state’s rethinking of that policy reflects a tough on crime attitude on the part of prosecutors that is now catching up on prison informants.

Huffington Post on the Rachel Hoffman Story

Huffington Post has this story on the tragic death of Rachel Hoffman -- Lethal Sting: How the War on Drugs Killed a College Student.Journalist Vince Beiser unearths new details about the young woman who became a drug informant in Tallahassee and was killed during a sting. Her death led to the passage of important legislation in Florida last year, which requires new police guidelines for the creation of informants--previous post here.

"America's most successful stop snitchin' campaign"

Another excellent piece from journalist Radley Balko at American's Most Successful Stop Snitchin' Campaign. This piece elaborates on the subject of Eric Miller's last post, chronicling the retaliation and punishment openly inflicted on police officers who have broken the code of silence and reported official wrongdoing in cities such as Kansas City, New York, and Albuquerque. From the article:
In his book Breaking Rank: A Top Cop's Expose of the Dark Side of American Policing, former Seattle Police Chief Norm Stamper explains the implicit threats that make the Blue Wall so successful:
"You have to rely on your fellow officers to back you. A cop with a reputation as a snitch is one vulnerable police officer, likely to find his peers slow to respond to requests for backup-if they show up at all. A snitch is subject to social snubbing. Or malicious mischief, or sabotage...The peer pressure is childish and churlish, but it's real. Few cops can stand up to it."
Which makes it all the more important that police administrators and political leaders support and protect the cops who do. The most disturbing aspect of these stories is not that there are bad cops in Kansas City, New York, and Albuquerque. It's not even that other cops covered for them, or that police unions have institutionalized the protection of bad cops. The most disturbing part of these cases is that the cover-up and retaliation extend all the way to the top of the chain of command--and that so far there has been no action, or even condemnation, from the elected officials who are supposed to hold police leaders accountable.

Friday, October 15, 2010

Police as Snitches

NPR’s "This American Life" recently posted an interview with NYPD police officer Adrian Schoolcraft, who secretly recorded conversations at Bedford-Stuyvesant's 81st Precinct. Schoolcraft’s recordings were originally published by the Village Voice, and became the subject of a five-part expose of the Bed-Stuy police's practices. The Schoolcraft tapes revealed the extent to which modern policing is driven by a series of arrest quotas rather than increasing the quality of life for the residents of Bedford-Stuyvesant. Perversely, the 81st Precinct's overzealous attention to the reported crime figures drove up arrests for minor crime, at the same time as driving down charges for major crimes. Put differently, the emphasis was on both the number of arrests made (busywork for the police) while at the same time proclaiming that serious crime rates were down (so reclassifying serious crimes as less severe, so as to undercut fear of crime).

Schoolcraft is a snitch: he broke the police's own stop snitching code, the Blue Line of silence. Rarely mentioned in the snitching debates is that the police have, and celebrate, their own stop snitching code, one that is expressly designed to hide illegal or quasi-illegal activities from public scrutiny. The Blue Line is in some ways disturbingly thick: it serves not only to separate but also to distance the police from the rest of the public. The Blue Line separates the police from the public by reinforcing negative police stereotypes of the people with whom they interact on a daily basis. The Blue Line distances the police from the public by turning a blind eye to forcible and arbitrary displays of authority, of the sort that, as demonstrated in the "This American Life" interview, delegitimize the police in the eyes of the public.

Dr. Rick Frei's "Snitching Study," which I blogged about earlier in the week, produced an interesting statistic that is relevant here: 60% of interviewees considered it permissible to snitch on cops. That statistic is borne out, anecdotally at least, by Schoolcraft's experience: "This American Life" revealed that Bed-Stuy residents were willing to tell him who were the cops engaged in improper policing practices. Of course, the Blue Line at the same time discounts and disvalues citizen reports on the police, while possessing the information that confirms such reports, and while enforcing police refusal to snitch on other police officers.

The impact of Schoolcraft's revelations should not be understated. First, they bolster some statistical data from a report entitled "New York City Police Department's 'Stop and Frisk' Practices," also known as the Spitzer Report. That report found that only 61 percent of police stops cited constitutionally adequate grounds for a stop-and-frisk, with 39 percent adducing constitutionally insufficient or indeterminate grounds. Schoolcraft's tapes suggest that the police engaged in a stop first, find probable cause (or reasonable suspicion) later policy, applied randomly to the Bed-Stuy residents.

A second feature of Schoolcraft's recording campaign is to note that while police have become increasingly fond of police-initiated recordings, e.g., car mounted cameras, they have become increasingly suspicious of citizen-initiated recordings, using mobile phones. Here again, the citizenry undermine and question police authoritarianism through the use of camera phones to challenge, or snitch on, police-citizen encounters. There is currently a lawsuit pending in Maryland, where an officer is suing for invasion of privacy a citizen who recorded a police stop and snitched.

The authoritarian element underlying both policing by numbers and the Blue Line of silence is precisely the authoritarianism necessary for the sort of policing that relies upon snitches and confessions. Schoolcraft, and other "Good Cops" like him (to use the title of a book by David Harris) do not engage in forcible policing, but consensual policing. They do not need to use their cuffs to establish their authority. Instead of driving away all sources of information except those willing to talk for a price, policing could develop relations by engaging with the people they police. Schoolcraft's recording suggests that consensual policing has fallen victim to policing by numbers, and at least in the 81st Precinct, officers were encouraged to cut corners but not snitch on each other at the same time they demand that the citizens they mistreated act as snitches.

Tuesday, October 12, 2010

Tribal Law and Order Act of 2010

My student, Sam Dickhut, is writing a great paper on the Tribal Law and Order Act of 2010 that incidentally raises an interesting issue about snitching. His paper, and the Act itself, responds to a recent Amnesty International study finding that a disproportionate number of rapes (two-and-a-half times the non-native population) are perpetuated against the American Indian and Alaskan Native communities of the United States. Almost one third of the rapes are committed by non-Native American visitors on tribal lands, and these stranger rapes are disproportionately likely to be violent.

A central contributing factor, Sam argues, is the case of Oliphant v Suquamish Indian Tribe, 435 U.S. 190, 193 (1978), which holds that tribal courts do not have jurisdiction over non-Indians. Accordingly, rapes must be investigated and prosecuted by the federal government. And the government faces two, snitching-related obstacles.

The first obstacle is the difficulty of obtaining information from the white communities abutting tribal lands, given variety of racial and cultural stereotypes that are applied to the rape victims. Not only are such communities unwilling to snitch on the perpetrators of sexual crimes, they dominate the jury pools, rendering it difficult to prosecute such cases to a conviction.

The second obstacle is the historically fraught relationship between the Native population and the government. Lacking specific training to deal with the cultural norms and practices that they will encounter on tribal lands, and residing outside the community, investigators and prosecutors often lack the sort of relationship with tribal officers or members, and so cannot generate the information necessary to prosecute such cases.

The Tribal Law and Order Act proposes to solve the problem of rape prosecutions, in part by increasing the law enforcement competence of the currently underfunded and under-trained tribal officers, as well as granting tribal courts additional sentencing powers. But treating the problem as one of tribal enforcement rather than federal enforcement perpetuates the idea that this is a tribal problem, rather than a federal one.

Instead, the problem of snitching should be addressed head on as the Indian Law Commission, which was created by the Act, conducts hearings over the next three years in order to develop proposals for further legislation. Alexandra Natapoff's work on snitching, especially when read against the background of David Harris's "Good Cops," suggests the problem is not communities' refusal to cooperate with the police, but the police's lack of interest or training in dealing with specific communities in a consistently engaged and thoroughgoing manner. The Tribal Law and Order Act provides an amazing opportunity for the federal government, through the FBI and the U.S. Attorney's office, to right current injustices as well as historical wrongs by engaging in the sort of community outreach to develop the sort of partnerships productive of understanding and trust in the target communities that stop snitching advocates consistently recommend. That work is often hard, and faces difficult cultural obstacles. But it produces the sort of policing that is the mark of the good cop, and in this case could have a major social and cultural impact.

Saturday, October 9, 2010

Snitching Study

Dr. Rick Frei, a professor at the Community College of Philadelphia, recently conducted a study ("The Snitching Study") of over 1,500 community college students to determine whether there was widespread agreement among the students as to the definition of "snitching," and what factors would increase or decrease the likelihood that a student would "snitch" on someone they knew to have committed a crime. Professor Frei also testified before the United States Senate’s Subcommittee on Crime and Drugs as to the result of his survey.

The study confirmed that most students (82.6%) regarded "ratting on someone else to get out of a crime" as snitching; whereas less than a third (28.6%) regarded "picking a suspect out of a police lineup" as snitching. While that last figure still seems higher than optimal, it is perhaps explained by another of the survey’s findings, that "half the sample said they did not trust the police," even though 60% of respondents claimed to know a police officer personally.

Two factors in particular stood out for me. First was that "[t]he more the situation required the person to take the initiative … the more likely it was to be viewed as snitching." (Dr. Frei’s Testimony before the Subcommittee). Least likely to be viewed as snitching (16%) was '[a]nswering questions from the police if you are at the scene of the crime." Here, the student’s definition of snitching seemed to track the ACLU's distinction between acting as an informant and acting as a witness. That may have important ramifications for the manner in which the police engage in gathering evidence from people with knowledge of criminal activity.

The second striking factor from the study was that "[n]early half of all students said that they would be more likely to cooperate if there was someone besides the police to which they could report crimes." This factor appears to bolster the idea that the students surveyed tend to distrust the police, or perhaps what the police would do with the information — many students were less likely to snitch if the crime was non-violent. One obvious response would be to set up tipster hotlines that are not directly identified with the police, and which individuals reporting crimes could use to report incidents. Another way to approach the same problem may be to make such tipster hotlines anonymous. Anonymity impacts the most important factor inhibiting the students from acting as informants: almost thirty percent of students said they would be less likely to snitch if it would affect their reputation in the community. There are some worrying practical and legal problems with hotlines, however, and in particular anonymous tips, that I shall consider in a later post.

Tuesday, October 5, 2010

Massachusetts Supreme Court disapproves of prosecutorial rewards to witnesses

Two witnesses in Wayne Miranda's murder trial received $2000 each from the Chamber of Commerce because their testimony assisted in producing a guilty verdict. As the Boston Globe writes, the Massachusetts Supreme Court, while approving such witness reward programs generally, has ruled that prosecutors cannot participate in them or help witnesses get rewards when those rewards are contingent on convictions. Commonwealth v. Wayne Miranda, SJC-10568. From the Court's opinion:
We recognize that, to prove the crime charged, prosecutors often need to procure the cooperation and truthful information or testimony of reluctant witnesses. The interests of justice, however, are not well served when a witness's reward is contingent on the conviction of a defendant, rather than the provision of truthful information or testimony.
While the Massachusetts Supreme Court should be lauded for its ethical concern, its decision is somewhat ironic. Prosecutors routinely provide far greater benefits to criminal informant witnesses, in the form of liberty and leniency, than a few thousand dollars. In many jurisdictions, these rewards can be contigent on conviction. And even when the rewards are not expressly contingent on conviction, every attorney and informant knows that a witness in a successful conviction is more likely to get rewarded.
This is why Professor George Harris [author of Testimony for Sale: The Law and Ethics of Snitches and Experts, 28 Pepp. L. Rev. 1 (2000)], and I have recommended leveling the playing field by creating defense informants, i.e. rewards for informants who come forward with information that might help the defense rather than the prosecution. As it currently stands, an offender with information helpful to the defense cannot expect any benefits--only the government can give those. This lopsided arrangement is, as the Massachusetts Supreme Court pointed out, not in the interests of accuracy or justice.

Monday, October 4, 2010

Texas requires corroboration for informant witnesses

Perhaps as a result of these sorts of debacles, Infamous fake drug scandal in Dallas, Of Experts and Snitches, Texas has passed some good corroboration legislation restricting the use of drug informants and jailhouse snitches. Last year, it passed this law requiring corroboration for jailhouse snitches:
A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant's interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code. Crim. Pro. art. 38-075
Article 38-141 similarly requires corroboration before a drug informant can testify. These are steps in the right direction, although they are only partial solutions to the lying snitch problem. The key to informant unreliability is not whether the informant is involved in drugs or in jail, but whether he expects a benefit and therefore has a motivation to lie. Nebraska takes the right approach in this regard by defining "informant" to include "any criminal suspect, whether or not he is detained or incarcerated, who received a deal, promise, inducement or benefit." Neb. Rev. Stat. 29-1929. In defining informant broadly, the Nebraska legislature reasoned that "there is a compelling state interest in providing safeguards against the admission of testimony the reliability of which may be or has been compromised through improper inducements."

Sunday, October 3, 2010

Welcome to Professor Eric Miller

I'm so pleased to introduce guest blogger Professor Eric Miller, from St. Louis University School of Law. His scholarship focuses on policing, race, and drug enforcement--key issues in the informant policy world. Readers may be particularly interested in this piece: Role-Based Policing: Restraining Police Conduct "Outside the Legitimate Investigative Sphere," 94 Cal. L. Rev. 617 (2006), in which Professor Miller thinks about the many informal ways that police interact with suspects and citizens. He'll be with us for October.

Guest Blogger Professor Eric J. Miller

My thanks to Alexandra Natapoff for the opportunity to contribute to this blog. Like many folks thinking about the complex range of social attitudes to snitching, I have been deeply influenced by Alexandra's writing on the subject, and in particular, her article "Snitching: The Institutional and Communal Consequences." That being said, while I share her focus on the criminal aspects of snitching, I'd also like to throw in some examples from time to time that exhibit the breadth of snitching depictions in our culture. So I'll begin with a slightly lengthy post to set out my general take on snitching.

Think, for example of the popular AMC series Mad Men, set in a Madison Avenue advertising firm during the 1960s, as an extended meditation on the disvalue of snitching. Each of the central characters has a secret, many of them criminal or quasi-criminal (at the time), and none more so than the hero of the piece, Don Draper, who is a deserter from the Army during the Korean War living under an assumed identity. Yet at pivotal moments throughout the four seasons of Mad Men, other characters have found out Don's secret and refused to snitch. I don't think it too much of a stretch to suggest that one of the major attractions of the series is precisely our interest in seeing if someone will snitch on Don. If this is a plausible characterization of Mad Men, then the show advances - and the audience’s response confirms - the value of not-snitching as a major part of our culture.

More strikingly, we tend to think that the folks who refuse to snitch - Don's ex-wife Betty Francis, Don's former boss and now partner, Bert Cooper, Don's colleague Pete Campbell, and so on - are doing the right thing. Why?

Two aspects of snitching (or informing or whistleblowing, to put it in neutral or even positive terms) are brought out by the series: first, snitching undermines trust and second, it can have very severe personal and social consequences.

Here I should issue a quick spoiler alert for those who haven't got to the latest episode from the current season, "Hands and Knees." That episode was all about the central issues of snitching: secrets and trust ("loyalty" as discussed on the Wall Street Journal's Mad Men blog, hosted by Walter Dellinger ). What stood out in the episode was the - at times odd - refusal of friends, colleagues, family, and even enemies (the categories are not mutually exclusive) to snitch on Don.

A central motivation of the characters in that episode was that the consequences of snitching fall not only on Don, but on each of them too. For example, Betty's new marriage has already hit some bumps, particularly in relation to her husband, Henry Francis's political ambitions. He may be unable to trust her if he finds out she married him wile knowing Don was a deserter. The consequences are perhaps even greater for the seedy Pete Campbell: if Pete snitches, Don will disappear, destroying the firm and Pete's fledgling career. Pete swallows the loss of his major client and, during a partner's meeting, sucks up Roger Sterling's vitriol to avoid snitching. Such deference makes economic sense: while taking a hit in the short term, Pete clearly hopes Don will bring in more money down the road.

But Pete's self interest also depends upon Don's loyalty: Pete trusts that Don will both remain Don Draper, the mercurial creative force that drives the profits, and remain at the firm. For Betty, too, there is a need to maintain trust if life is to continue uninterrupted. The question the Federal Agents ask her regards Don's loyalty: is he generally someone in which she (and the nation) should place its trust. So long as she can trust him to remain Don, her marriage is secure.

So how does all this relate to police and policing? The point is that snitching - which Alexandra defines as the "very specific law enforcement practice of rewarding informants by forgiving them their crimes" - operates against a social background of trust-based moral values and self-interested calculations of profit, loss, and personal security. Snitching eviscerates trust, and while it may increase the security or profitability of discrete individuals in the course of what Alexandra calls the "information-liability exchange between informants and the government," it may threaten the security or profitability of the group as a whole.
In the case of Mad Men, the relevant group is Sterling Cooper Draper Pryce (the advertising firm at the heart of the story) along with Betty's family life. But in the real world, the relevant groups include fragile communities of families and friends, often living in economically and legally equivocal circumstances. We easily empathize with the rich, suave, middle-class, white deserter Don Draper (and are encouraged to do so by the writers); we may not so easily empathize with the poor, working-class, minorities who are often the subjects of diatribes about snitching (and are often encouraged by this in media depictions of criminals and anti-snitching).

Yet anti-snitching may seek to preserve the interests of the group over the interests of the individual - particularly when, as Alexandra points out in her great article, the snitches are not usually the innocent bystanders or victims of crime, but its perpetrators. The police must be trusted to do the right thing and protect the community’s security: if the snitches are themselves perceived as enemies of the community, or the consequences as socially destructive, then anti-snitching makes good moral and practical (prudential) sense. While I am not suggesting that snitching is always morally or prudentially justified, I am endorsing the thought that the picture is not so simple as the media often portrays it.

Friday, October 1, 2010

A rare rebuke to the government

Today's New York Times opines about the FBI's sordid 15-year history of covering up for two of its top informants, James "Whitey" Bulger and Stephen "the Rifleman" Flemmi. The government's mishandling of these two seasoned criminals has generated numerous criminal cases, law suits, and a scathing 2004 Congressional inquiry entitled "Everything Secret Degenerates: The FBI's Use of Murderers as Informants." In this latest episode, last week Judge William Young ordered the U.S. Department of Justice to compensate the families of two Flemmi/Bulger murder victims because of how government lawyers had "bullied and maligned" the families during litigation.

Thursday, September 30, 2010

What goes around: violent snitch sentenced for shooting witness

When someone is a "longtime police informant," as the Seattle Post Intelligencer described Devaughn Dorsey, it means that person has had a long-term relationship with police and/or prosecutors in which the government has ignored his crimes, or lessened his punishment, in exchange for information. When that person also happens to be "one of Seattle's most violent criminals . . . [who] has shot no fewer than eight people since 1990," it illustrates the most troubling aspect of criminal informant use--that the government is tolerating crime from its information sources in pursuit of new cases. See this previous post --Violent robber-snitch formed new home invasion gang--discussing the dilemma of informants who continue to commit crime while working for the government.

Friday, September 24, 2010

Young informant commits suicide

A significant problem that has not yet received sufficient attention: protecting young and vulnerable informants. This story in the Missoulian is about how police handled Colton Peterson, a suicidal 21-year-old who was working for them as a drug informant: "Family believes son's suicide partly caused by law enforcement's conscription as an informant." The story raises some of the same issues that caused Florida to pass "Rachel's law" after 23-year-old Rachel Hoffman was killed while working as an informant. See these previous posts: "Florida's 'Rachel's Law' offers some protection for informants" and "Recruiting new informants." Under Florida's new law, police must now consider certain minimum factors before recruiting a person as an informant, including the person's "age and maturity," and "whether the person has shown any indication of emotional instability." My deepest condolences to Colton's parents, Juliena Darling and Frank Peterson.

Tuesday, September 21, 2010

Motion to Preclude Creation of Snitch Testimony

The Kansas Death Penalty Defense Unit recently filed this motion asking the court to take protective measures to prevent jailhouse snitches from being created in the case of Kansas v. Adam Longoria. Asserting that "Mr. Longoria has no intention of talking to anyone but his attorneys about the facts of this case," the motion requests that the court "take measures to ensure that no jailhouse snitches or other suspect informants are created in this case to manufacture evidence for the state." This proactive defense tactic appears to be getting more common (see previous post: Interesting effort to preempt jailhouse snitching).

Friday, September 3, 2010

Thanks to Michael Rich

Many thanks for Michael Rich for sharing his work and insights. Additional guest bloggers coming soon.

Tuesday, August 31, 2010

Thank you

As my brief tenure as a guest blogger here comes to an end, I just want to thank everyone for reading my contributions. I hope that I have been able to add in a meaningful way to discussions about how best to use, manage, protect, and recruit informants. For those of you who are interested, I hope that you will keep tabs on my profile on SSRN, where I hope soon to be posting my most recent work on informants, including an article discussing the moral status of informing and how that status should impact when and how police and prosecutors recruit and use informants and another contemplating the propriety and value of police encouraging civilians to commit immoral acts in the name of fighting crime. Until then, thank you.

Jailhouse snitches for the defense

The Massachusetts Supreme Judicial Court recently rejected a motion by Calvin Carnes, a convicted killer, to stay his appeal pending his attempts to seek a new trial on the ground that the prosecution withheld exculpatory evidence. The evidence in question was an affidavit of a jailhouse informant who claimed that Robert Turner, one of Carnes's accomplices, confessed to the homicides. The Suffolk District Attorney's Office justified waiting eighteen months to turn over the affidavit on the ground that they had needed time to check out the informant's story, meet with Turner's attorneys, and, assuming the informant's story was true, allow Turner more time to make incriminating statements. The prosecutors further argued that the delay didn't matter because the informant was "unreliable and untrustworthy based on his extensive criminal history and the fact that he was giving inaccurate and incomplete information." The response of Ellen Zucker, Carnes's attorney, is worth quoting in full:
Prosecutors use jailhouse snitches all the time when they’re seeking prosecution of somebody. In each case, they have a profile not dissimilar to Mr. Smith, [the informant in this case]. It would be very curious if the district attorney took the standard they’re applying to Mr. Smith and applied it to every jailhouse snitch they put on the stand to try to get a conviction.
Of course, a lying informant is not valuable to anyone, and it is in everyone's best interest for the state to ensure that informants are not permitted to lie. And in the ideal world, the police and prosecutors would exert just as much effort to test the veracity of informant's testifying for them as they do when an informant wishes to provide unhelpful testimony. But if the history of informant use has taught us anything, it is that the combination of more-or-less unbridled prosecutorial discretion, secrecy in the handling of informants, and zeal for convictions has led to inconsistent stances by states depending on whether they are relying upon or attempting to rebut informant testimony. In other words, every jailhouse informant is a lying rat unless he's testifying for your side.

Monday, August 30, 2010

Using informants to ID gang members (and other secondary uses of informants)

San Francisco City Attorney Dennis Herrera has filed suit seeking a civil injunction against forty-one young, African-American men who he alleges are members of two rival gangs. If granted, the injunction would impose a 10 p.m. curfew on the men and forbid them from "trespassing, selling drugs, and illegally possessing firearms, loitering, displaying gang signs, and associating in public" in a two-tenth square mile area in San Francisco. Unlike a criminal action, none of the listed individuals have a right to counsel to defend against the action and given that the injunction deals with residents of a public housing project, it is unlikely that they have the funds to hire their own. As for how the men are identified as gang members, the City Attorney's Office applied criteria also used in other states, including Florida, Tennessee, South Dakota, and New Hampshire, for IDing gang members. Under these standards, an individual must meet at least two of ten criteria to be considered a gang member, and two of the criteria are informant-related: "Subject has been identified as a gang member by a reliable informant/source," and, "Subject has been identified as a gang member by an untested informant or source with corroborative evidence." Though how the criteria are applied is murky, the plain language of these two suggests that one can be identified by law enforcement as a gang member almost entirely by informant action. Indeed, if two informants, one reliable and one untested, finger the same person as an informant, that might be enough, so long as the reliable informant is deemed "corroborative evidence" for the untested informant's identification. And, as the San Francisco case shows, the implications of such an identification are far-reaching.

In San Francisco, being deemed a gang member may mean that your First Amendment rights to association are restricted. Moreover, in California, Tennessee, Florida, South Dakota, and New Hampshire, if you're labeled a gang member by informants, you are subject to significantly higher penalties if convicted of the same crime. In addition, your assets are more likely to be subject to forfeiture, and information about you will be stored in government databases for years. And what's notable about most of these effects is that they occur without the same kind of due process accorded in criminal trials (the exception being the enhanced criminal penalties, which generally require that the jury find beyond a reasonable doubt that the defendant is a gang member). The result, as in San Francisco, is that when they happen there is little a resident of a inner-city, high-crime neighborhood can do about it, because they lack the resources to do so.

And the gang member identification is only one of the more formalized secondary impacts of police use of informants. By secondary, I mean tangential to the main use of informants, which is to "make" criminal cases. Other secondary effects of informant use may be increased police surveillance of alleged criminals, interactions with police that do not lead to arrests, and stigmatization within communities, leading to interpersonal and intrafamily tensions and loss of job prospects. All of these can occur when police rely on informants who are pressured to come up with evidence for their handlers, either to earn money or to work off a beef. And unlike a criminal charge, which at least will involve a defense attorney and some due process, these negative secondary effects are nearly impossible to reverse. Indeed, because police dealings with informants are hidden from public view, they are particular difficult to combat.

Ultimately, this simply means that their is more at stake when it comes to restricting informant use or making it more open to public scrutiny than "merely" criminal convictions. Police harassment, loss of privacy, impingement on civil rights, and loss of property rights also are at issue.

Thursday, August 26, 2010

The (monetary) costs of informant use

On Wednesday, FBI Special Agent Robert Fuller testified that the US government paid informant Shahed Hussain about $100 per day and $52,000 total for his work in helping to plan a fake plot to bomb a New York City synagogue. The four individuals that he worked with are currently on trial for their roles in the plot. In Florida, Tampa police and the FBI paid an informant approximately $2,400 per month to set up twelve alleged gang members. On its own, neither rate is extraordinary. But now in the Florida case, some of the twelve accused gang members have filed suit against the FBI, the city of Tampa, and individual officers, claiming malicious prosecution and civil rights violations. The criminal cases against alleged gang members were thrown out after a state court judge found egregious misconduct by the informant in the case. Even if the civil case is unsuccessful, the cost to the taxpayers of defending it will be significant and will certainly dwarf the money originally paid to the informant. These legal costs are an inevitable part of a system that thrives on minimal oversight and self-enforced guidelines.

Tuesday, August 24, 2010

Rewarding illegal informant activity -- a German example

The government often rewards informants for their illegal activity. A petty drug dealer is not prosecuted if she provides information on her supplier, information she would not have were she not involved in the drug trade. A member of an organized crime family receives leniency for his crimes in exchange for testimony against a crime boss. An informant is paid to assist in planning a terrorist attack and testify against the other planners. But few American cases parallel a recent incident in Germany:
German authorities in the state of Baden-Wuerttemberg are examining tax information offered by an informant detailing what may be illicit funds stashed in Swiss accounts, though they said they won’t buy stolen data.
This is only the latest in a string of cases (detailed here) in which insiders at banks in Switzerland, Luxembourg, and Liechtenstein have stolen bank account data and attempted to sell it. The potential buyers are the home countries of the owners of the accounts, to whom significant quantities of tax revenue are owed. In the best-known incident, Germany's foreign intelligence service paid an employee of a subsidiary of Liechtenstein's largest bank more than 4 million Euros for stolen account information on 600 Germans, many of whom were evading German tax laws. As I will attempt to explain, these cases raise interesting and important questions about the ethics and wisdom of rewarding criminal activity.

But before getting there, it's helpful to see how the bank informants differ from the informant examples listed above. I see at least three difference. First, the bank informants stole the records for the sole purpose of profiting from them. This situation is thus different than that of the petty drug dealer or the organized crime family member, because the latter groups obtain the information they provide to the government tangentially to their initial purpose of successfully engaging in criminal activity. As a result, the connection between the illegal activity and the reward is less direct. Put another way, the government doesn't reward the drug dealer for dealing drugs, it rewards her for information she happened to acquire while dealing drugs. It's a fine distinction morally, but as a policy matter it's much less likely that paying the drug dealer will encourage more drug dealing than it is that paying the thief will encourage more similar thefts.

Second, the bank informants stole the records prior to any contacts with the purchasing government entity. This differentiates them from the informant hired to infiltrate a terrorist organization who helps plan an attack, because in the latter case, but not the former, the government can play some role in authorizing, guiding, and restricting the informant's illegal activity. In the bank informants case, on the other hand, that illegality runs unchecked until the informant chooses to come forward.

Third, the bank informants stole the records from their employers who were doing business legally in their home jurisdictions. This means that unlike in the other informant cases, there is an "innocent" victim, or at least a victim who played by the rules of its home jurisdiction. Though the banks almost certainly knew that they were assisting in criminal behavior in other jurisdictions, they at least has a colorable argument to justify their activities. The mid-level drug dealer, organized crime boss, and terrorist organization member have no such argument. Thus, the government, in purchasing the assistance of these informants, is immune from a claim that an innocent victim has been hurt alone the way.

With these distinctions in mind, the best analogy I can come up with to the current situation is that of a hacker who steals information from a credit card company that reveals illegal transactions by the card users for the purpose of selling the information to law enforcement. Such a case would raise questions somewhat different from those usually at issue in U.S. informant cases: Is it morally proper for the government to pay an informant for the proceeds of an illegal act committed without previous authorization against an entity engaged in legal activity in its own jurisdiction and for the sole purpose of obtaining such a payment? And is it good policy to do so?

With respect to the more question, the issue calls to mind other circumstances where the ends are found to justify immoral means by law enforcement. For instance, police are permitted to deceive defendants in order to obtain confessions. And prosecutors may authorize the commission of minor crimes in order to catch more significant offenders. In particular, this question reminds me of the observation that my host here has made that police often look the other way when informants engage in petty criminal activity, like theft, that harms innocent victims. But these cases are even worse in a sense, as the government is not just ignoring criminal activity against innocents, but rewarding it. On the other hand, the banks are international corporations that are aware that they are flouting the laws of other jurisdictions and not innocent residents of high-crime neighborhoods, thus indicating that the victims may not be so innocent. But regardless of exactly how the case of the bank informants compares to current police practice, paying for stolen information in this context seems to be another small expansion of the use of informants that reinforces the notion that the road to hell may well be paved with good intentions.

With respect to the policy question, the answer seems to be clearer. By paying a thief for committing a theft, one encourages more thieves to do the same. And indeed after Germany paid for the Liechtenstein records, more thieves came out of the woodwork. From a purely monetary standpoint, in an individual case the benefits, at least in terms of the lost tax revenue recovered, may outweigh the cost of the reward, but the harm caused by those future thieves who uncover minimal or no additional wrongdoing through their crime may well tip the scale in the other direction. And this calculus does not even consider the significant harm that paying these thieves would cause to the public perception of law enforcement and to their moral standing in the community as it reinforces the sense that the police are frequently in cahoots with law breakers.

Finally, to bring it home, the issues facing Germany are also facing the U.S. government, only in a less public venue: the same individual who sold account information stolen Liechtenstein's largest bank to Germany has filed a claim with the IRS to collect a bounty for revealing information garnered from these same records about individuals dodging U.S. tax laws. But unlike in Germany, IRS regulations keep the agency's deliberations relatively secret, meaning that the US is making its decision without the public oversight currently causing headaches to politicians in Germany.

Friday, August 20, 2010

The power of labels

There is no shortage of slang terms for informants: "weasels," "rats," "stool pigeons," and, of course, "snitches." And none imply positive things about those who assist the police. According to the Oxford English Dictionary, to "weasel" means "to escape from or extricate oneself out (of a situation, obligation, etc.), esp. dishonourably." A "rat" is "a man who is deceitful or disloyal in a romantic relationship," "a person who deserts his or her party, side, or cause," "a person who gives information, esp. of an incriminating nature, on another person to the police or other authority, an informer." And to "snitch" is "to inform upon or on a person" or "to take surreptitiously, purloin." Yet, despite the negative connotations of these slang terms, they (and particularly "snitch") are used synonymously with "informant" in journalism and academic debate, where at least the appearance of neutrality is valued. For instance, a search of news articles over the past year finds thousands of uses of the word "snitch." Many of course are found in direct quotations or a similar context, but some simply refer to informants as snitches, and thus import the negative connotation into a presumably neutral forum. A fair number of law review articles incorporate the word "snitch" in the title. And this blog is called, "Snitching Blog."

To some extent, of course, the use of slang synonyms is unavoidable as authors and reporters seek to avoid repetition. But I raise the issue because I wonder to what extent the use of a term like "snitch" improperly colors the debate over the proper role and treatment of confidential informants. Some, like Paul Butler, have argued that the term "snitch" refers only to a subset of confidential informants and do not include those civilians who assist the police out of a sense of civic duty. I don't disagree that were this distinction adhered to in practice, it would be valuable, but the use of the word "snitch" is sufficiently indiscriminate to raise concerns that in academic and journalistic discussion those good citizens are being painted with the same brush as criminals who turn in their accomplices.

Wednesday, August 18, 2010

Interesting effort to preempt jailhouse snitching

Since everyone in the criminal system knows that high-profile murder suspects are prime targets for jailhouse snitches, why not try to nip it in the bud? That's what one Arizona public defender tried to do, asking the judge to keep other inmates away from his client Pamela Phillips if those other inmates were also represented by the public defender's office. Were such inmates to come forward as snitch witnesses, it would create a conflict and the public defender's office could no longer represent Phillips. Story here: Pre-emptive anti-snitch move fails. The judge denied the motion, but its a good example of proactive lawyering that builds on our growing knowledge of how jailhouse informants operate.

Tuesday, August 17, 2010

Tailoring solutions to informant problems

The city of Atlanta has agreed to pay $4.9 million to the family of Kathryn Johnston, a 92-year-old woman who was killed by police acting on a false tip from an unregistered informant. The police then planted drugs in Johnston's home to cover up their failure to follow the law and Atlanta Police Department policy on informant use. (A fuller account of the Johnston case can be found here.) The settlement properly reflects the egregious nature of the misconduct in the case, but the more important question is whether the settlement can properly be said to bring "[o]ne of the most divisive chapters in the history of the Atlanta Police Department . . . to a close." While it certainly marks the end of what the court system can do to assuage the pain caused by Johnston's death, the settlement marks the end of the chapter only if the steps that the APD and the City of Atlanta have taken to make sure that a similar incident does not happen again are likely to be effective.

The APD has attempted to fix the problems that led to the Johnston tragedy by reorganizing its Narcotics Unit and strengthening its Office of Professional Standards (which houses the department's Internal Affairs and Corruption Units). While these steps are positive, they continue to rely on the police to self-regulate, a task that the APD and police departments generally often do poorly. (In Atlanta's case, a report written in response to the Johnston incident found repeated breaches of APD policies and a police culture that ignored these breaches.) Indeed, if Johnston's death was the result of "rogue officers," strengthened policies are unlikely to prevent future tragedies.

Atlanta City Council, apparently skeptical of the APD's ability to self-police, reacted to the Johnston tragedy by creating a Citizen Review Board and empowering it to investigate citizen complaints against the APD. The creation of the CRB is a positive step away from unfettered police discretion and toward civilian oversight.

But informant use presents a unique problem that this CRB (and others like it) is ill-suited to address. In particular, Atlanta's CRB has the authority only to respond to citizen complaints. Such complaints provide an effective oversight mechanism only for misconduct that is likely to be reported. For example, civilians who are subject to excessive use of force or who suffer false arrest or imprisonment are likely to bring complaints to the CRB. But police use (and misuse) of informants takes place almost entirely in secret, and those civilians who might have knowledge of police misconduct -- the informants themselves -- are unlikely to report it. After all, informants frequently assist the police under threat of criminal prosecution for a prior offense. And any complaint to a CRB by such an informant will likely result in the informant's incarceration, thus creating a strong disincentive to report misconduct.

For instance, prior to raiding Johnston's home, APD officers stopped a suspected drug dealer, planted drugs on him, and threatened to arrest him if he didn't provide information to incriminate someone else. That dealer falsely told police that a dealer with a significant amount of cocaine was at Johnston's home. The police then lied on an affidavit to secure a warrant, thus leading to the fatal raid. As this recounting shows, a CRB would not have prevented the Johnston incident, both because there was no time for a citizen complaint to be filed and because the informant was unlikely to complain for fear that the police would follow through on their threat of prosecuting him for the planted drugs. Instead, police misuse of informants will likely come to light only in situations like the Johnston tragedy, where an innocent civilian is injured, killed, or falsely imprisoned as the result of police misconduct. Meanwhile, the more run-of-the-mill misconduct involving false or fabricated informant testimony (used to incriminate the actually guilty), informants permitted to continue to engage in low-level criminal conduct, and informants coerced into engaging in dangerous activities with little to no training will continue unchecked.

Of course, bad actors intent on misconduct are difficult to deter completely, but two approaches would work better than those taken in Atlanta. First, affirmatively obligating the police to report on informant use would allow for insight into systemic problems before they lead to incidents like the Johnston tragedy. For instance, it is likely that the events leading to Johnston's death were not the first time that the officers involved had fabricated informant testimony. Informant use data might have identified them as wrongdoers due to informant use at a rate or in a manner inconsistent with their fellow officers.

Second, forbidding the police and prosecutors from trading pre-conviction leniency for informant assistance would make tragedies like the Johnston incident less likely. I've argued that many such bargains violate the Thirteenth Amendment, but regardless of the basis for the prohibition, such a ban would have two positive effects. The first is that it would place the informant-state relationship under the supervision of the courts, which could guarantee that informants are used appropriately. The second benefit is that a ban would make police hesitant to offer such deals and civilians would be less likely to accept them, knowing that they are prohibited and thus unlikely to be honored. In the Johnston case, such a ban may have prevented the police from receiving the false information tying Johnston's home to drug dealing and thus prevented her death.

The problem of informant misuse is a difficult one, but tragedies like Johnston's death deserve solutions that are tailored to the problems that cause them.

Friday, August 13, 2010

Informant lawsuit against FBI offers window into messy world of anti-terrorism

By the end of his stint working for the FBI, informant Craig Monteilh was earning over $11,000 a month to secretly film and record worshippers at the Islamic Center of Irvine, California. Monteilh, who has a lengthy rap sheet of his own, is now suing the FBI for allegedly instructing him to plead guilty to criminal charges of grand theft so as to maintain his cover. The Associated Press report on Monteilh's lawsuit reveals details of the informant's world that the public rarely gets to see, particularly the government's ability to use private individuals/informants to obtain information that the government would otherwise need evidence of wrongdoing and a warrant to obtain: US Judge gives informant time to amend FBI lawsuit. From the story:
In court papers and his ACLU declaration, Monteilh says he was asked to work as an informant for local law enforcement in 2004, when he became friendly with some police officers in a local gym. By 2006, he was promoted to the FBI's counterterrorism operations. Monteilh alleges he gathered phone numbers and contact information for hundreds of Muslim-Americans and recorded thousands of hours of conversation using a device on his key fob or cell phone during his stint with the FBI. His said his handlers told him to work out with Muslims at gyms, asked him to get codes for security systems so they could enter mosques at night and encouraged him to ask mosque members about "jihad" and supporting terrorist operations abroad. In June 2007, however, mosque members became suspicious of Monteilh and requested a restraining order, saying that he had spoken repeatedly about engaging in jihad.

Thursday, August 12, 2010

Judged by the company you keep

Yesterday, Hal Turner, a shock jock and blogger popular with the Ku Klux Klan, Aryan Nations, and American Nazi movements, testified in his own defense at his criminal trial. Turner is charged with making threatening blog posts about Judges Posner, Bauer, and Easterbrook of the Seventh Circuit Court of Appeals, in which he suggested that the three judges deserved the same fate as District Court Judge Joan Lefkow for a decision upholding handgun bans in Chicago and a suburb. Judge Lefkow's husband and mother were murdered in 2005. Turner's defense is that the posts were not actual threats, and his testimony outlined his four-year stint as an FBI informant.

Between 2003 and 2007, Turner was paid by the FBI to attend gatherings of white extremists and gather evidence about their activities. He testified that his FBI handlers also encouraged him to use inflammatory rhetoric in order to flush out those responsible for the murders of Judge Lefkow's husband and mother. This rhetoric, he claimed, was no more inflammatory than that which led to the criminal charges, and he testified that his FBI handler praised him for his rhetoric and assured him that it was not illegal.

This case raises two issues: first, it's an excellent example of a conundrum facing law enforcement. On one hand, it is difficult to infiltrate and prosecute organized crime, like white power groups, without people on the inside. On the other, the people on the inside willing to cooperate with the government are, in some sense, doubly odious, as they are both criminals and willing to be disloyal to their peers. Thus, to the extent that the state cooperate with them and encourages their activities, the state is painted with the same brush. Here, the FBI's reputation is necessarily tarred by its relationship with Turner, who made money both for egging on and celebrating white supremacists and for turning them in to the police.

This problem is multiplied when the government then prosecutes the informant for activities similar to those for which the government previously paid the informant. Then, as here, the state risks appearing hypocritical on top of being moral suspect for its affiliation with criminals. This further weakens law enforcement credibility with civilian populations that already have a tendency not to trust the police.

The second issue is that by previously encouraging activities similar to those that form the basis of the current criminal charge, the FBI has made it exceedingly difficult to obtain a conviction against Turner. According to Turner, his FBI handler assured him that his earlier statements about Judge Lefkow were not criminal. Now he faces charges for similar statements. Though there may be legally important distinctions between the two sets of statements, those distinctions are fine, and the state is in a very difficult position trying to argue them to a lay jury. Thus, it is not surprising that the case against Turner already has ended in mistrials twice.

Monday, August 9, 2010

The limited value of police policies on informant use

The police department in Jacksonville, North Carolina is facing criticism for using a fugitive as an informant in a drug sting. The sting resulted in 394 felony counts charged against 45 suspects, though these numbers paint a misleading picture of the sting's success. First, the charges have resulted mainly in sentences of probation and in little jail time. Moreover, at least two of those targeted in the sting have claimed that the informant fabricated drug buys. The trial of one ended in a hung jury, and police are concerned about the credibility of the informant in light of his fugitive status. Finally, the informant, who is accused of shaking a five-month-old child so hard that she suffered a broken arm, cracked ribcage, and retinal bleeding, has yet to face any possible punishment for an offense allegedly committed almost two years ago.

These problems are neither surprising nor rare. Others (including Professor Natapoff and myself) have explored the issues: that drug informants often do little to get criminals off the street, instead churning cases targeting minor offenders; that they fabricate evidence leading to false convictions; and that the alliance between police and criminals like the informant in this case cast the police in a negative light and call into question their standing to enforce the criminal laws.

But what is interesting about this case is that the use of this informant was in flagrant violation of Jacksonville Police Department policy, which says that no individuals wanted on a warrant can be used as a confidential informant. The policy no doubt is meant to prevent the problems here, as fugitives are less credible as witnesses, have a significant incentive to fabricate evidence, and diminish police credibility. And the need for such a policy is real: an individual with an outstanding warrant is a prime target of an officer seeking an informant because the potential sentence hanging over the individual's head is excellent leverage to recruit her.

But, as this case shows, the existence of a policy is at best only a laudable first step toward responsible informant use, and one that inevitably fails unless the policy is enforceable, compliance with it is transparent, and police are held accountable for violations.

On the enforceability front, courts have repeatedly declined to allow injured civilians (including informants) to enforce violations of police procedures. This means that police, like wolves guarding the chicken coop, enforce their own rules. In most cases, then, breaches of policy are enforced only when public outcry requires it, as in the Rachel Hoffman case in Tallahassee. And in this case the JPD administration provides little hope that its policies will be enforced, as the JPD's deputy chief has said that an investigation will occur only "if a violation of policy is brought to [the JPD's] attention."

This raises the issue of transparency. Typically neither internal police guidelines nor the specifics of any informant case are made public. (In Tulsa, Oklahoma, for instance, the police department grudgingly released its policy on informant use while making clear that the policy did not fall within Oklahoma sunshine law. Moreover, though Tulsa's policies are reportedly "grounded in national standards," the former police chief acknowledged that policies are worthless if they're not enforced.) Here, the JPD refuses to release the name of the informant. And when the informant finally was arraigned, he received an unsecured bond before the detective investigating the outstanding charges even had an opportunity to speak to him. With proceedings cloaked in secrecy, it is nearly impossible for there to be independent investigation of potential past wrongdoing or for current violations to be uncovered.

Finally, most police procedures lack accountability. The procedures themselves generally do not include any punishment for violators, and courts are loathe to undermine a criminal case based solely on violations of police procedures. As a result, police have very little incentive to abide by their own procedures when, as they inevitably do, police perceive the policies as making their jobs more difficult. And the incentives to violate procedures are significant: police often are assessed and rewarded based on how many arrests they make, regardless of how those arrests are made. (In this case, one of the officers involved in the sting was promoted, though it is unclear if there is any causal connection between the sting and the promotion.)

These problems are not unique to informants, of course. The vast expanse of police and prosecutorial discretion is a frequently-explored phenomenon, and this is just one of the many areas where that discretion, which depends entirely on the assurance of state agents that they can be trusted to govern themselves, is problematic.

Nevertheless, the case in Jacksonville goes to show that while pushing for policy changes is a worthwhile effort, it can only be a first step toward more effective, fair, and just informant use. Until these policies are enforceable, compliance with them is transparent, and their violation results in real punishment, little genuine change in police handling of informants can be expected.

Wednesday, August 4, 2010

The Wikileaks informants

On July 25, the New York Times reported on the release by of more than 92,000 U.S. military documents relating to the war in Afghanistan. While interesting from a number of angles, for our purposes the story is a tale of two informants that highlights complicated questions of loyalty and society's treatment of informants. The first informant in the story was Pfc. Bradley Manning, an Army soldier who allegedly transmitted the leaked reports to Wikileaks. While not an "informant" in the traditional sense, as he did not help the government apprehend criminals, Manning played the informant's role by revealing miscalculations and fatal mistakes, if not crimes, committed by the U.S. military in Afghanistan. The second informant was Adrian Lamo, who reported Manning's involvement in the leak to federal authorities.

What no one seems able to agree on, however, is whether Manning and Lamo are heroes, villains, or something in between.

Seen in the best possible light, Manning is a classic whistle-blower. Disillusioned with his employer's actions, he revealed them publicly in the hopes of forcing change. What some see as treason, then, could also be viewed as the highest form of loyalty to America's ideals of openness and public debate. But even if he did not betray his country, Manning certainly betrayed his fellow soldiers and those Afghans who have assisted the United States by placing them in mortal danger. And, at least according to Lamo, Manning's motives were not altruistic: he leaked the documents because enjoyed the attention that his contact at Wikileaks lavished on him, not because it was the right thing to do.

Lamo, on the other hand, is an informant in the more typical mold. He is a hacker with a previous conviction for breaching computer networks. He lied to Manning in order to gain the soldier's confidence, claiming to be an ordained minister so that Manning would feel comfortable giving his "confession." And he has at least arguably milked the situation for attention. Yet Lamo says that he came forward out of a sense of moral obligation: he believed that Manning had endangered human lives and felt that it would be cowardly to do nothing.

Neither Manning nor Lamo would seem to be a clear-cut hero or villain, then, and each has been both celebrated and condemned. Some call Manning a hero (the website for the Bradley Manning support network is here), while others have called for his execution. For his part, Lamo has received death threats and has been shunned by the hacker community, but he also has been hailed as a patriot for doing the right thing in a tough spot.

Moreover, the situation is even more of a moral and ethical morass than the typical criminal informant case, because there at least the underlying criminal conduct is considered unquestionably wrong. Here, though, one's perspective on Manning and Lamo may depend on one's view of the war in Afghanistan. If you believe it is a just war, then you may feel that Lamo did the right thing, but if you think that the war has been mishandled, then you may see Manning as a hero. Alternatively, some will fall back on equating legality with morality. In that case, Manning is a villain for breaking the law, while Lamo, though maybe not a hero, at least committed no crime.

But what should the government do? It does not prosecute every crime, and whether Manning is charged is a decision within the government's broad prosecutorial discretion. Without knowing all of the facts, I don't know how that discretion should be exercised. What I do suggest, however, is that whoever makes the final decision must consider more than the letter of law and focus as well on the morality of Manning's actions. It appears to me that he betrayed his compatriots, but it is less clear that he betrayed his country. The crime charged must fit his moral desert. Treason may be going too far, but something less than treason may be appropriate.

Meanwhile, what do we do about Lamo? He lied to and betrayed Manning, and he did so at the instigation of the government, with whom he was actively cooperating during his discussions with Manning. This raises a larger question that applies to the government's handling of many criminal informants: should the state encourage informants, as private citizens, to commit immoral, if non-criminal, acts? As I see it, there is something unsavory and disquieting about the government, in the name of enforcing criminal laws that are themselves based on society's moral code, pushing civilians to act immorally. And certainly law enforcement's involvement in private immorality weaken the communicative force of the criminal justice system. But is that a price we are willing to pay for the information that informants like Lamo provide?

Friday, July 30, 2010

Rich on "stop snitching"

Before I get started, I'd like to thank Alexandra Natapoff for the opportunity to contribute to this blog. I look forward to providing a different and (hopefully) interesting take on the problems and contradictions that arise from law enforcement's dependence on, and society's complicated relationship with, criminal informants.

So, let's start with one of the contradictions:

When newspaper reporters and columnists write about informants outside the context of wrongful convictions, the tone tends to be one-note, excoriating "stop snitching" culture. A recent editorial by Bill Maxwell, a columnist for the St. Petersburg Times, is typical. (A couple of similar recent articles or columns are here and here.) Criticizing the black community in Tampa Bay for ostracizing three women who helped two police officers after they had been shot, he also takes on the "snitching ethos":
If we do not call the police, we deserve the mayhem and dysfunction we suffer. When we conceal the identity of a murderer, we endanger everyone. When we turn our backs on drug deals near our homes, we cheapen the rule of law and destroy social values. In addition to its self-destructiveness, the snitching ethos alienates us from others, putting us at odds with normal behavior.
Maxwell's points generally are well-taken, if not particularly novel.

But another recent column also caught my eye. This one, by Marc Hansen of the Des Moines Register, bears the headline, "Iowan mails Lefty's arm back to bar, won't snitch on thief." Far less gruesome than it sounds, the story involves the theft of a mannequin's left arm from a bar in San Francisco and its subsequent return by Doug Kintzle, a Des Moines resident who had it in his basement. Hansen explains that though Kintzle knows who stole the arm, the culprit is part of his cycling group, and Kintzle refuses to "snitch." As Hansen says, "you have to respect that." And I think he's right: most people would have no problem with Kintzle staying mum and protecting his friend.

But why is the Maxwell's "snitching ethos" bad, and Kintzle's refusal to "snitch" good? Despite the presence of a stolen plastic arm, I ask the question non-facetiously: in both cases we're talking about crimes that the police can't solve without an informant's help, yet in one case refusing to snitch is reprehensible and in the other it's respectable.

(posted by Michael Rich)

Of course, there are numerous differences that may help explain the discrepancy, and prime among them is the relative severity of the crimes: murder in one case, and the theft of a piece of a plastic mannequin in the other. But Maxwell also argues that the failure to report drug dealing "cheapen[s] the rule of law and destroy[s] social values." Isn't drug dealing, arguably a malum prohibitum crime, less morally culpable than stealing? Doesn't Kintzle also cheapen the rule of law by refusing to inform on the thief? Isn't "do not steal" an important social value?

Or is the critical difference that Kintzle is refusing to snitch on a member of his cycling group and we respect the loyalty of those who bicycle together more than we do loyalties among neighborhood members? Or is it that petty theft within cycling groups is unlikely to foment more crime, while drug dealing will? Or that drug dealers tend to be poorer than cyclists? Or that Maxwell is talking about black communities and cycling is largely a sport enjoyed by whites?

Most likely, it's a combination of some or all of these considerations that makes us comfortable with Kintzle's silence and generally agree with Maxwell. But the question of where the line is drawn between bad snitching and good informing is infrequently considered and one that policymakers need to keep in mind when they tailor policies to encourage cooperation with the police.

Guest blogger Professor Michael Rich

I am very pleased to introduce Snitching Blog's first guest blogger: Professor Michael Rich formerly at Capital University Law School and recently moved to Elon University School of Law. Professor Rich has written about the use of informants as a potential violation of the Thirteenth Amendment, which prohibits involuntary servitude. From the abstract:
Though active informants cooperate for many reasons, most assist the police out of fear that if they refuse, they will be subject to criminal prosecution or more severe punishment. This Article argues that by compelling these "coerced informants" to work under such a threat, the government violates the Thirteenth Amendment's prohibition on involuntary servitude. As a doctrinal matter, compelling coerced informants to serve under threat of criminal sanction fits the Thirteenth Amendment's definition of involuntary servitude. Moreover, the use of coerced informants offends the free labor principles that animated the passage and ratification of the Thirteenth Amendment and underlie the Supreme Court's Thirteenth Amendment jurisprudence.
Link to article here: Coerced Informants and Thirteenth Amendment Limitations on the Police-Informant Relationship, 50 Santa Clara L. Rev. 681 (2010). Professor Rich will be here throughout August.

Tuesday, July 27, 2010

Huffington Post on the dangers of being a snitch

Cameron Douglas (actor Michael's Douglas's son) got a lot of press for his drug conviction and his cooperation with the government, which apparently cut his ten year sentence in half. See also NY Post story here: Douglas ratted on dealers. Now the Huffington Post points out that as an acknowledged informant, Douglas "is likely to face a very tough time in prison." From Anthony Papa's (Drug Policy Alliance) post:
From my experience as someone who served 12 years in New York's Sing Sing state prison -- one of the most dangerous prisons in America -- I know that Cameron Douglas is in a world of trouble. Once a prisoner is labeled as a "snitch," their life in prison suddenly changes and is in immediate danger. In prison a snitch is frowned upon and is at the bottom of the hierarchy of prison life. Until this point, it seemed that Douglas was living a pretty comfortable life in the camp at Lewisberg. Minimum security institutions have dormitory housing, a relatively low staff-to-inmate ratio, and limited or no perimeter fencing. Douglas's status will likely change as soon as his life is threatened. Once this happens, his entire world will turn upside down, and he will be transferred to protective custody.

Sunday, July 18, 2010

Another jailhouse snitch drives a homicide investigation

Today's Akron Beacon Journal reports on new developments in the Neal Rankin murder case: "DNA results may give inmate a new trial." The police had a lot of trouble identifying a suspect back in 1993--according to the commander of the homicide unit, they had "45 suspects the first day," and murder charges were brought and then dropped against several defendants. Finally, over a year after the murder, the government charged Dewey Amos Jones with the crime based on an allegation from a jaihouse snitch that Jones had confessed to him. I include the story not only because it is yet another example of a shaky case built on compensated snitch testimony, but because it illustrates how powerful an informant's allegations can be. Here, a jailhouse snitch got authorities to focus on Jones long after the crime, and without any direct evidence of his guilt. Jones is represented by the Ohio Innocence Project.

Friday, July 16, 2010

"It's a matter of trust": Philly Inquirer editorial on citizen cooperation

From today's Philadelphia Inquirer:
It's no wonder that residents of some crime-infested Philadelphia neighborhoods are afraid to "snitch." How can they expect protection from police who are in bed with drug dealers? All the assurance in the world that three officers, indicted for scheming to steal a drug dealer's heroin and sell it, aren't representative of most Philadelphia cops leaves open the question of whether there are others like them. . . . A necessary ingredient in effectively fighting crime is the trust of the community officers are trying to protect. You can't have that when people believe cops are just crooks, too.
Rest of editorial here.

Friday, June 25, 2010

Federal witness killed after lawyer allegedly leaks his name

The cycle of failure continues in Baltimore: last year an FBI drug informant was killed, this year a woman who authorities believe witnessed his murder is being charged with perjury and faces 30 years in prison for refusing to testify about it: Baltimore Sun story here. Kareem Guest was killed after a lawyer allegedly violated an agreement to keep Guest's cooperation confidential. It's worth noting that local media initially dismissed Guest's murder as a routine street killing. As the Sun writes:
Guest, 31, was shot repeatedly in the head and chest on Sept. 20, 2009. In one of those familiar bloody Baltimore weekends, he was one of 13 people shot over two days — one more name on a burgeoning list noting the violence but saying virtually nothing of the circumstances. City police and the news media initially dismissed Guest as a routine victim, a man on probation for drugs, leaving the impression that he was killed, like many others, in some sort of petty dispute over heroin. The FBI knew better.
In cities like Baltimore, it is impossible to know how much street violence is associated with informants--crimes against them as well as crimes committed by them. That's why I've argued that law enforcement agencies should start keeping track of and make public the extent to which urban crime is directly connected to snitching policies and practices.

Tuesday, June 22, 2010

Important pending legislation in New York

Legislation is pending before the New York Senate that would reduce the occurences of wrongful conviction. Recommended by the New York State Bar Association Task Force on Wrongful Conviction, the six bills address, among other things, criminal informants, eye witness testimony, recording interrogations, and improved discovery. Here are links to the legislation and the NYSB press release.

The proposed informant legislation would accomplish a number of important things. First, it would require corroboration before any criminal informant testimony could be used in court. An informant is defined as any person "who is not an accomplice and who agrees to provide testimony or evidence on an understanding that he or she will receive a favorable disposition or resolution of pending or possible criminal charges, financial benefit not associated with usual witness appearance, or other substantial benefit for himself or another person." This is an appropriate definition--it captures all informants who have an incentive to lie in order to gain a benefit, while excluding regular civilian witnesses, whistleblowers, and victims. The bill would also improve the discovery of information about informants, preserve informant anonymity if there are safety or other good reasons, and require a special instruction reminding jurors that the informant witness is receiving a benefit and that therefore his testimony should be viewed with caution. The legislation is covered today in an AP story about Steve Barnes who spent 20 years in prison based on the fabricated testimony of a criminal informant--story available here: Steve Barnes lost 20 years to lying jailhouse snitch: proposed law would keep liars from court.