Dennis Fitzgerald is a former DEA agent and Miami police narcotics supervisor. He has written an article entitled "Wrong-Door Raids, Phantom Informants, and the Controlled Buy," in which he not only describes problems with drug informant use, but also some best practices that can counter them. For example, he points out that "the creation of 'phantom informants' is a practice that has plagued police departments for decades," and recommends that police agencies institute better documentation requirements to counter this problem. More generally, he discusses the problem of wrong-door raids and the police practices that generate them. From the article:
During the last 20 years, police have killed at least 40 innocent people while conducting wrong-door raids. According to a study by the Cato Institute, "Because of shoddy police work, over-reliance on informants, and other problems, each year hundreds of raids are conducted on the wrong addresses, bringing unnecessary terror and frightening confrontation to people never suspected of a crime."
1. Willful disregard for police standard operating procedures governing the use of informants and conducting controlled buys 2. Use of "cookie cutter" affidavits containing boilerplate language from a computer program 3. Blatant lies in search warrant affidavits 4. Creation of phantom informants 5. Supplying drug exhibits "purchased" by a phantom informant 6. Planting drugs in homes when no drugs are discovered during a search.
Fitzgerald is also the author of the book "Informants and Undercover Investigations: A Practical Guide to Law, Policy and Procedure" (CRC Press, 2007).
Snitching is featured this week over on the Page 99 Test . The blog is driven by the writer Ford Madox Ford's adage: "Open the book to page ninety-nine and read, and the quality of the whole will be revealed to you." Page 99 of Snitching reads as follows:
Today's informant culture goes beyond the inquiry in any specific case about whether it might be dangerous to reveal the name of an informant or whether a particular investigation might be compromised by such revelations. Rather, the system is moving towards wholesale policies of keeping cases, dockets, and practices secret. Today, the potential threat to some witnesses is now seen by courts as a reason to overcome the presumption of openness for all criminal records.
In these ways, the practice of using informants undermines public transparency throughout the criminal system. By resolving liability in secret, it insulates investigative and prosecutorial techniques from judicial and legislative scrutiny. This reduced public access affects numerous other constituencies as well, making it more difficult for the press, crime victims, families, and policy analysts to obtain information about the workings of the justice system or about specific criminal cases. Informant use has thus become a powerful and destructive informational policy in its own right, reducing public transparency and obscuring the real impact of criminal practices on individuals, communities, and other institutions.
Here's another important story from Radley Balko at Reason Magazine entitled "The Forfeiture Racket." It chronicles the disturbing history of our powerful drug forfeiture laws, and how governments have seized literally billions of dollars from innocent people. Here's an excerpt:
Over the past three decades, it has become routine in the United States for state, local, and federal governments to seize the property of people who were never even charged with, much less convicted of, a crime. Nearly every year, according to Justice Department statistics, the federal government sets new records for asset forfeiture. And under many state laws, the situation is even worse: State officials can seize property without a warrant and need only show "probable cause" that the booty was connected to a drug crime in order to keep it, as opposed to the criminal standard of proof "beyond a reasonable doubt." Instead of being innocent until proven guilty, owners of seized property all too often have a heavier burden of proof than the government officials who stole their stuff.
Filed in Informant LawPermalink
The Philadelphia Inquirer's witness intimidation series (previous post here) triggered a congressional hearing. You can read the testimonies here, including criticism of the series for exaggerating the extent of the problem. See testimony of Michael Coard. Senator Arlen Specter (D-PA) subsequently called for a law that would make witness intimidation a federal offense; witness intimidation is already a state crime. Story here. In a similar development, Rep. Elijah Cummings (D-MD) introduced the Witness Security and Protection Grant Program Act of 2009, to provide assistance to state and local witness protection programs. Press release here. More indications that the law of informant use will look very different a few years from now.
Last week I did the Patt Morrison Show on KPCC (you can listen here), with prize-winning former L.A.Times investigative reporter Ted Rohrlich. Over the years he's done some great stories on informants. For example, in Trading Lies for Freedom, Rohrlich reported on several professional jailhouse snitches in the Los Angeles County jail system, including the now-infamous Leslie Vernon White of 60 Minutes fame. The piece describes the "variety of techniques" used by snitches to fabricate confessions:
To gather the information that will make a confession appear plausible, informants have used a variety of techniques, ranging from the artful to the crude. Some informants, for example, have carefully maintained files of newspaper and magazine articles on sensational criminal cases, or have stolen legal documents from the cells of other inmates. They have conned fellow prisoners, even those who have insisted on their innocence, into giving up key details of the cases against them. Some have pretended to be jailhouse lawyers offering free advice. Others merely have asked why someone is in jail, then transformed the most sincere protestations of innocence into admissions of guilt. Informants have purchased information from other informants for money, candy or cigarettes. Some informants have testified that they received inside information from police.
In Authorities Go Fishing for Jailhouse Confessions, Rohrlich described how some detectives purposefully placed suspects in the LA jail "snitch tank," hoping that the resident informants would come up with incriminating confessions. The story begins as follows:
The homicide detective thought he knew the identity of a murderer but couldn't prove it. To make his case, he wanted a confession. But his suspect wouldn't talk. Los Angeles Police Detective Philip Sowers did what one prosecutor said a lot of detectives do. He turned to the informant tank at Los Angeles County Jail for help. Sowers arranged for jailers to place his suspect, who was not an informant, in the special section of the jail reserved for informants -- inmates who habitually tell police that other inmates have confessed to murders or other serious crimes. Within days, Sowers had reports from four informants, known to detectives as "friendlies," that his suspect had confessed.
Joseph Jones had quite a choice. He could plead guilty to selling drugs he had not sold and serve eight years in prison. Or he could risk being convicted at trial and, as a three-time loser, be sentenced to life. Ex-felon Miguel Hernandez was offered a similarly absurd "break." He could give up 16 months of his life by pleading guilty to possessing a weapon he had never had. Or he could demand a trial and face the possibility of four or more years in prison. In offering criminal defendants these kinds of Hobson's choices, prosecutors and judges did not set out to induce innocent men to plead guilty--although that is what they did. The prosecutors and judges merely accepted the word of Los Angeles police that the men were guilty.
Each of these articles is important in its own right, shedding light on specific criminal justice failures. They also remind us that journalism plays a crucial role in maintaining the accountability of a criminal process that rarely volunteers information about its own mistakes.
The London Daily News reports that Scotland Yard may be facing contempt of court for refusing to reveal how much it spends on snitches. Story here. The paper reports that the city spends approximately $4 million a year to pay informants. While U.S. governments do not reveal such figures either, a study by the National Law Journal concluded that in 1993, federal agencies paid their confidential informants $97 million.
Filed in SecrecyPermalink
The New Jersey Record reports that ultra-right-wing radio host/blogger Hal Turner worked for over five years for the FBI. Turner was tried last month for threatening three federal appellate judges in Chicago: Judges Posner, Easterbrook, and Bauer. Turner's case ended in a mistrial and he is scheduled to be retried in March. According to the Record, Turner was paid and coached by the FBI while he broadcast neo-Nazi and white supremacy views over the radio and internet:
As Turner took to his radio show and blog to say that those who opposed his extremist views deserve to die, he received thousands of dollars from the FBI to report on such groups as the Aryan Nations and the white supremacist National Alliance, and even a member of the Blue Eyed Devils skinhead punk band. Later, he was sent undercover to Brazil where he reported a plot to send non-military supplies to anti-American Iraqi resistance fighters. Sometimes he signed "Valhalla" on his FBI payment receipts instead of his own name.
His dual life of shock jock and informant offers a window into the murky realm of domestic intelligence in the years after the Sept. 11 terror attacks — in particular, the difficult choices for the FBI in penetrating controversial fringe groups with equally controversial informants. In interviews, he said the FBI coached him to make racist, anti-Semitic and other threatening statements and now he feels double-crossed by the bureau after his arrest. The documents reviewed by The Record, however, show repeated instances of federal agents admonishing Turner for his extremism.
Turner blames the FBI, saying that while agents never said he could threaten judges, they coached him on the limits of what he could say. As a result, Turner said he felt he had wide latitude. "I was given specific instructions," he said.
The NY Times reports here and here that the Jordanian militant who killed numerous CIA and Jordanian intelligence operatives was considered by the CIA to be one of its most promising informants. From the Times:
American intelligence officials said Tuesday they had been so hopeful about what the Jordanian might deliver during a meeting with C.I.A. officials last Wednesday at a remote base in Khost that top officials at the agency and the White House had been informed that the gathering would take place.
Instead, the discovery that the man, Humam Khalil Abu-Mulal al-Balawi, also known as Humam Khalil Mohammed, was a double agent and the killing of seven C.I.A. operatives in the blast were major setbacks to a spy agency that has struggled to gather even the most ephemeral intelligence about the whereabouts of Osama bin Laden.
few criticized the agency's impulse to chase any credible lead about the locations of Al Qaeda's top leaders. "This is the C.I.A's top priority, and when I was in Afghanistan, if any intelligence came about the possible whereabouts of Zawahri or bin Laden, you dropped everything to run it to ground," said a former senior C.I.A. officer. "Everyone would have wanted to be on the team that caught Zawahri. That's the kind of thing that makes careers."
This post from TalkLeft "Govt Wires Lawer as Informant to Tape and Incriminate Inmate" describes the disturbing story of defense attorney Terry Haddock who secretly recorded more than 30 conversations with inmate Shannon Williams who has now been charged with money laundering. Haddock says he told Williams that he (Haddock) wasn't acting as his lawyer; Williams says he hired Haddock to represent him. I argue in the book that the spread of snitching has affected the role of the defense attorney--this is a prime example. From TalkLeft:
Even if Haddock told Williams he wasn't representing Williams in the lawsuit, if he gave advice on it, it seems reasonable that Williams would think Haddock was providing legal counsel to him and that they had a privileged relationship. It's not a requirement of the lawyer client privilege that the lawyer officially you in a court proceeding.
Of course, when a lawyer participates in the client's crime, the crime-fraud exception to the attorney-client privilege kicks in and the privilege no longer applies. But it's one thing for the client and lawyer to agree together to violate the law, and another for the cops on their own to get the lawyer to pretend to to agree with the client to violate the law. The latter, even if legal, seems morally bankrupt.
After all, why would Williams trust Haddock with the illegal details of his business? Because he trusted him. Why did he trust him? Because he thought he was his lawyer.
Whether it turns out to be legal or not, it's a really crummy way to make a pot and money laundering case. While I'm not shocked the U.S. Attorney's office and police department used the tactic, I can think of no justifiable excuse for Haddock. Like Pignatelli, he brings shame to the legal profession, and if only one defendant out there reads about Haddock and decides not to trust his or her lawyer with the truth, hindering their lawyer's ability to mount an effective defense, it's one person too many.
Some things are more important than catching drug dealers, and the public's faith in the sanctity of the attorney-client privilege is one of them.
Filed in Dynamics of SnitchingPermalink
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