• 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

Monday, May 24, 2010

Cycling world grapples with "snitching"

Lest you think that "stop snitching" is confined to inner-city neighborhoods plagued by drug violence, check out this San Diego Union Tribune story, "Whistle Blower or Snitch?", in which the sports world reacts to Floyd Landis's doping allegations against other cyclists. The New York Times a few days ago reported that Landis "has agreed to cooperate with authorities in the United States." The debate is raging over whether Landis did a good thing (exposed illegal doping) or a shabby thing (sold out his colleagues to evade responsibility for his own wrongdoing).

Although criminal charges have not been filed against Landis, he may still benefit in that regard. Offenders routinely cooperate in order to stave off criminal charges. Indeed, according to renowned white collar defense attorney Kenneth Mann, one of the biggest benefits of cooperation is the ability to shape the pre-indictment process. Landis's new status as potential witness rather than target may be one of his biggest gains.

Shooting victim testifies in Philly

A shooting victim's willingness to testify against the drug dealer who shot him is big news in Philadelphia: Inquirer story here--Despite Threats, Victim Testifies in Phila. Court. That such testimony is perceived as rare (and courageous) reflects the widespread violent witness intimidation suffered by Philly urban residents, and documented in this Inquirer series: Witness Intimidation Crisis. As I've written elsewhere, witness intimidation is most pernicious when the threatened fear that the government won't protect them. That's why these legislative efforts to improve state witness protection programs are so important.

Monday, May 17, 2010

Do jurors ignore informant rewards?

One of the central justifications for the use of compensated criminal witnesses is the idea that juries can evaluate informant credibility in ways that lead to fair and reliable outcomes. Specifically, the Supreme Court held that rewarding criminals for testimony is constitutional, relying in part on the procedural protections of discovery, cross-examination, and jury instructions. The idea is that the government can constitutionally reward its witnesses as long as the defense knows about it and the jury is properly instructed.

Recent psychological research throws some doubt on this idea. Dr. Jeff Neuschatz and a number of other psychologists published the following paper: The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decision Making, Law & Human Behavior 32 (2008): 137-149. They concluded that jurors who were told that a witness was getting a deal (and therefore had an incentive to lie) were just as likely to convict as jurors who didn't know that the witness was being compensated. Moreover, the bare fact that an informant said there was a confession made the jury more likely to convict. From the article:
First, both college and community samples demonstrated that conviction rates were unaffected by the explicit provision of information indicating that the witness received an incentive to testify. Second, and consistent with the research on confession evidence in the courtroom, the presence of a confession, albeit a secondary confession, had a significant influence on mock juror conviction rates. More specifically, in every witness typeand across both college and community samples, mock jurors convicted significantly more often when there was a secondary confession provided by a cooperating witness than when no such witness had testified....
Even though the witness in the incentive condition had an enormous motivation to fabricate evidence (having been provided a situational incentive to testify), jurors appeared to ignore this information and render verdicts that were not significantly different across the Incentive and No Incentive conditions. The participants may not have recognized or considered the impact that an incentive might have on behavior and/or the willingness to provide accurate and truthful information. Furthermore, participants did not have significantly different ratings of truthfulness or trustworthiness across the Incentive and No Incentive conditions.
This is an important finding. The system assumes that jurors who are told that an informant is getting a deal will be less likely to believe the informant and less likely to convict. This study suggests not only that this isn't so, but that just having a criminal informant testify to a confession significantly enhances the likelihood of a conviction.

Monday, May 10, 2010

Primetime: U.S. customs authorizes informant to import cocaine

Another large-scale informant crime spree, this one courtesy of a Grits comment. In this story, ABC News Primetime documented how U.S. Customs authorized its informant, Rodney Matthews, to import tons of cocaine into the U.S., much of which ended up on the streets. Here's the link to the Primetime transcript. Caught with a few hundred pounds of marijuana, Matthews became a Customs informant and starting importing cocaine with the government's blessing. While all the Customs officials interviewed acknowledged that such deals are routine, they disputed whether the drugs were permitted by the government to hit the streets: Agent Tom Grieve said it wasn't authorized, while Mark Conrad of Customs internal affairs concluded that Grieve was lying to cover up the debacle. From the transcript:
FORREST SAWYER (Primetime) Was there anything said, anything that could have been in your wildest imagination misinterpreted to mean that Rodney Matthews could bring in a load and let it hit the streets?
AGENT TOM GRIEVE No. Not hit the streets. No, no, no, no. No. See, that's-no, no.
FORREST SAWYER Tom Grieve says that there was no carte blanche, nothing like carte blanche.
FORREST SAWYER ( VO ) Mark Conrad runs internal affairs for Customs in Houston. A 27-year veteran, Conrad spoke to PrimeTime in New York over the objections of the Customs Service.
MARK CONRAD We got in bed with Rodney Matthews and the importation of a humongous amount of narcotics coming into the United States.
FORREST SAWYER And the reason wasn't because they were dirty?
MARK CONRAD No. The reason is there's a great deal of pressure on agents in the field to make cases, to make the big one. And the bigger, the better.
FORREST SAWYER ( VO ) In fact, more than a dozen agents and former drug enforcement officials told us that letting dope hit the streets is the cost of doing business, that while the Matthews case is extreme, it's just the tip of the iceberg.
Matthews' former partner Jimmy Ellard got an even more dramatic deal. He had fled to Colombia and became a top transporter for drug kingpin Pablo Escobar. When he was caught in Florida, Ellard pled guilty to importing $6 billion [sic] worth of drugs into the U.S., and orchestrating a fatal airplane bombing. Ellard earned leniency by accusing several Customs officials of corruption. The officials were exonerated; Ellard served only six years in prison.

Violent robber-snitch formed new home invasion gang

Thanks to Grits for Breakfast for this story from the Dallas Morning News:
A confessed robber out on bond after he masterminded a series of violent North Texas home invasions apparently formed a new gang and went right back to his old ways.
In February 2008, William Sedric Autrey reached a plea deal with prosecutors and agreed to work as an undercover informant against others in a gang believed responsible for dozens of home invasions and burglaries between 2005 and 2008.
He was out on bond for almost two years, after negotiating a plea deal to ensure he would not spend more than 15 years behind bars. Authorities say that while he was free, Autrey, 41, formed a new gang that burst into houses, exchanged gunfire with a Dallas homeowner and burglarized and robbed almost two dozen homes around the area since November.
By now the story of criminal informants who continue to commit crimes while working for the government is depressingly familiar news; see, for example, these posts: Killer FBI Informant, and House of Death informant and Committing Crime While Working for the Government. Ongoing crime is an inherent feature of the snitching phenomenon, at least in the U.S. (some countries formally restrict their governments' authority to tolerate informant crime, but the U.S. is not yet one of them.) Accordingly, we need to figure out whether snitching is worth it. Do we solve more crimes than we permit with these deals? When criminal informants re-offend, can we tell the victims that their suffering produced a greater good? In Dallas, the prosecutor said that Autrey "'cooperated and helped get indictments on cases that involved hundreds of thousands of dollars' in mortgage fraud, student loan fraud and other white-collar crimes. He also said that Autrey continued to work with authorities on violent crimes, including some home invasion robberies committed by other people." Is that worth the dozens of robberies that Autrey continued to commit, including one in which robbers shot at a homeowner, and another in which they tied up a 15-year-old girl?

We can't have a full public debate about these questions because the government doesn't produce the data--we don't know how many crimes informants commit and solve. This is a central reason why I argue that data collection and transparency reforms are so fundamental. As I wrote in the book's introduction:
"The most important [snitching reform] is the most difficult: changing the culture of secrecy and deregulation that permits informants and officials alike to bend rules, evade accountability, and operate in secret. It is this culture that fosters snitching's worst dangers: wrongful convictions, unchecked criminal behavior, official corruption, public deception, and the weakened legitimacy of the criminal process in the eyes of its constituents. It is also the feature that prevents us from addressing the ultimate public policy questions with clarity. The system currently handles the problem by asking us to accept on faith that unregulated snitching is worth its risks, without either demonstrating its full benefits or revealing its true costs. For a public policy of this far-reaching importance, such faith is not enough."

Saturday, May 1, 2010

Book wins ABA Gavel Award

I'm honored to announce that Snitching has received the 2010 ABA Silver Gavel Award Honorable Mention for Books. The Gavel Awards are given to outstanding communication media that are "exemplary in helping to foster the American public's understanding of the law and the legal system."