• 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)

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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.