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Wednesday, December 9, 2015

60 Minutes on young informants

On Sunday, 60 Minutes ran this segment entitled "Young people going undercover in war on drugs."  The story covered several examples that have been in the news, including the recent Buzzfeed investigation into the student informant program at Ole Miss, the death of college student Andrew Sadek in North Dakota, and the death of Rachel Hoffman in Florida.  More examples are here.  For a thorough look at the ways that young informants are pressured and used, read the New Yorker article The Throwaways.

Tuesday, December 8, 2015

Call for federal investigation of Orange County

The jailhouse snitch scandal in Orange County continues to escalate.  In November, Dean Erwin Chemerinsky, former California Attorney General John Van de Kamp, and numerous other legal experts (including me), called for a federal investigation.  Here is the letter to U.S. Attorney General Lynch.  A month earlier, the New York Times Editorial Board identified the "blatant and systemic misconduct in the Orange County District Attorney's Office" and also called for a federal investigation.  Meanwhile, the OC Register published this special report entitled "How jailhouse informants and the 'snitch tank' put Orange County justice system in turmoil."

Monday, October 5, 2015

BuzzFeed investigation into student informants

BuzzFeed has been running a revealing investigation into how police--including campus police at Ole Miss--in Oxford, Mississippi have been pressuring students and college-age residents into becoming informants.  Here are links to the most recent articles:

How Mississippi Discovered The Drug War’s “Golden Egg” (April 20, 2015): A small-town narcotics unit has built a team of confidential informants by arresting low-level-offender college students and pressuring them to flip.

How Mississippi Cops Threaten College-Age Kids Into Becoming Informants (Oct. 1, 2015): A recording of two officers from Oxford, Mississippi’s Metro Narcotics unit sheds light on how the unit pressures college-age suspects into becoming informants.

From the most recent article:

"[E]ach year Metro Narcotics enlists an average of 30 informants, most of whom have little connection to the drug scene other than as low-level buyers. Around half of the 240 or so people arrested by Metro Narcotics in 2014 were first-time offenders, and the unit made three times as many arrests for marijuana as for any other drug. To get these young men and women to cooperate, the unit’s four agents often threaten them with prison sentences or a life-long drug record."

The article also includes transcripts of a conversation between police and two young potential informants in which police threatened the young pregnant woman with an unrealistical 30-year sentence, and got her boyfriend--who had no drug charges or contacts--to agree to become a drug informant to 'work off' his girlfriend's charge.  The two young people initially agreed, but then decided not to become informants after they consulted with an attorney. 


Monday, August 3, 2015

9th Circuit panel intervenes in prosecutorial misconduct

During appellate argument, a Ninth Circuit panel of federal judges lambasted the California Attorney General's office for failing to discipline a prosecutor who lied about rewarding a jailhouse snitch.  Los Angeles Times story and video of argument (beginning at 16:00 minutes) here.  The panel, which included Judges Kozinski, Wardlaw and Fletcher, instructed the government attorney to go back to his office and tell the Attorney General to act on the matter.

Tuesday, July 21, 2015

U.S. DOJ criticizes DEA informant program

The Office of the Inspector General (OIG) of the U.S. Department of Justice has just released this report, Audit of the Drug Enforcement Administration’s Confidential Source Policies and Oversight of Higher-Risk Confidential Sources.

This is an important report for a number of reasons.  The press and the public have had trouble getting basic information from the DEA about its informant policies and usage: this audit fills in some of those informational gaps. The audit identifies numerous troubling practices within the DEA and offers new insights into the kinds of risks that are routinely run by federal officials who rely on criminal informants.  The audit also strengthens the case for a pending bill in Congress entitled "The Confidential Informant Accountability Act," H.R. 2985, introduced by Rep. Stephen Lynch (D-MA). That bill would require the DEA, along with the FBI and other federal investigative agencies, to report to Congress the serious crimes committed by their informants, as well as their payments and rewards.  As described in greater detail below, the OIG found that the DEA was seriously deficient in documenting and controlling the crimes committed by its informants.

Highlights of the Report:

1. The DEA resisted the audit.  As the report put it, "the DEA has seriously impeded the OIG's audit process, which has affected our ability to conduct a timely, full, and effective review of the DEA’s Confidential Source Program. The DEA made attempts to prohibit the OIG's observation of confidential source file reviews and delayed, for months at a time, the provision of confidential source information and documentation."  The audit is therefore ongoing.  This resistance to oversight is consistent with the general culture of secrecy surrounding informant use, in which law enforcement is often resistant to disclosing its practices, even to its own direct supervisors. See, for example, this post.

2. The DEA permits its informants to deal drugs and commit other crimes without adequate supervision or oversight.  The U.S. DOJ has guidelines for its investigative agencies that require certain procedures before an informant can be authorized to commit a crime.  The DOJ Guidelines, which are here, distinguish between Tier One and Tier Two Otherwise Illegal Activity (OIA).  Tier One OIA includes very serious offenses and requires authorization from agency supervisors and a prosecutor.

The DEA does not follow these guidelines.  For example, the DEA explicitly excludes "the purchase of drugs or other undercover activities that are routinely performed by DEA Agents and CSs [confidential sources] during the normal course of their duties" from the kinds of "sensitive activities" that require supervisory approval within the DEA.  The only drug transactions for which the DEA rules require a prosecutor's approval are those involving amounts under U.S. Sentencing Guidelines 2D1.1(c)(1), which are the highest amounts documented in the guidelines, and include 90 KG or more of heroin, 450 KG or more of cocaine; 25.2 KG or more of cocaine base (crack); 90 KG or more of PCP; and 45 KG or more of Methamphetamine.  Amounts less than this do not require prosecutorial approval.  The report concludes:

"We believe the DEA’s policies do not adequately address the concerns and risks involved in authorizing confidential sources to conduct and participate in OIA and do not correspond to the AG Guidelines’ requirements in place to mitigate these risks....DEA confidential sources could engage in illegal activity that has not been adequately considered, or become involved in additional illegal activities beyond those that have been considered with the mistaken belief that they are doing so with the authorization of the DEA. Further, an ill-considered or unclear decision to authorize a confidential source to engage in OIA may create significant difficulties in prosecuting the source or co-conspirators on charges related to the source’s activities."

3. The DEA rarely reviews the relationships between its agents and their long-term informants (over six years), and when they do, the review is cursory.  This is historically and famously problematic: the DOJ Guidelines were themselves a direct response to the FBI's disastrous long-term relationships with its mafia informants.

4. The DEA pays some of its informants death and disability benefits when they are injured or killed in connection with their informant activities.

Sunday, June 14, 2015

Orange County jailhouse informant scandal goes national

National attention is finally turning to the Orange County fiasco.  The judge has kicked the entire District Attorney's Office off the case, largely because so many prosecutors and sheriffs lied under oath to protect their secret records and unconstitutional practices.  Dean Erwin Chemerinsky has called for an independent inquiry and major reforms; Al Jazeera has revealed secret recordings of the informant's negotiation with sheriffs; Slate's Dahlia Lithwick says the scandal "shows eerie parallels" to other jailhouse informant debacles. Speaking to Slate, Laura Fernandez at Yale Law School concludes that the "massive cover up by both law enforcement and prosecutors...has effectively turned the criminal justice system on its head."

Hopefully all this attention will finally persuade lawmakers that jailhouse informants are a public policy worth regulating properly at the front end, instead of waiting for some intrepid defense attorney or journalist to uncover a disaster.  For jurisdictions that have recently concluded as much, see this post.

Ex-traffickers rewarded for "El Chapo" indictment

In a dynamic reminiscent of the FBI's use of mafia informants, two major drug traffickers were given drastically reduced sentences in exchange for their cooperation against the Mexican Sinaloa cartel.  The two men reportedly smuggled $1.8 billion worth of drugs into Mexico and were facing life sentences; they have been cooperating with the U.S. government for six years.  From the Huffington Post:

"[A] federal prosecutor [] poured praise on Pedro and Margarito Flores, portraying them as among the most valuable traffickers-turned-informants in U.S. history and describing the courage they displayed in gathering evidence against Joaquin "El Chapo" Guzman and other leaders in Mexico's Sinaloa cartel. With credit for time served awaiting sentencing and for good behavior in prison, the brothers, now 33, could be out in as little as six years."

Informant contradicts Tampa police account of SWAT killing

The Tampa Bay Times reports that a criminal informant has come forward to dispute the police's account of a SWAT team killing.  In Confidential informer blows whistle in fatal Tampa SWAT raid, the Times describes the informant Ronnie Coogle as a 50-year-old addict and long-time offender who often worked as a police informant.  Coogle says that police misrepresented the information he gave them, as that as a result police unnecessarily killed "Jason Westcott, a young man with no criminal convictions whom a SWAT team killed during a drug raid that found just $2 worth of marijuana."  As the Times describes it, it's impossible to know what the truth really is, both because of Coogle's own admitted record of lying to police, and the police's failure to monitor or keep records about Coogle and the case:

"Coogle is nobody's idea of a righteous whistle-blower. The only constant in his story is his own dishonesty; even when he confesses to lying you don't know if he's telling the truth.  Much of what he says can be neither proved nor disproved, in large part because of the Police Department's minimal supervision of his work. But Coogle's allegations against the cops who paid him, and even his own admissions of double-dealing, aren't necessarily what's most disturbing about his account.  Most unsettling of all might be what nobody disputes — that police officers were willing to trust somebody like him in the first place."

Another informant who turned on his handlers in this way was Alex White, the Atlanta informant who blew the lid off the police killing of 92-year-old Kathryn Johnston and triggered a federal investigation into Atlanta police practices.  See the New York Times Magazine feature here.

Thursday, June 4, 2015

Detroit jailhouse snitch ring

Add Detroit to the list of known jailhouse informant scandals.  This story--Ring of Snitches: How Detroit Police Slapped False Murder Convictions on Young Black Men--details how during the 1990s, numerous informants obtained "lenient sentences as well as food, drugs, sex and special privileges from detectives in the Detroit Police Department's homicide division in return for making statements against dozens of prisoners eventually convicted of murder."  The story is eerily reminiscent of the Los Angeles debacle, as well the ongoing scandal in Orange County.

Denver Post examines costs and benefits of informant use

The Denver Post ran this three-part in depth series on informant use: How police reliance on confidential informants in Colorado carries risk, Some want harsher laws for confidential informants in Colorado, and Colorado gang slaying by ATF informant shows perils of informant use.

The series documents a large number of convictions obtained through informant use, including important evidence against violent gangs.  It also reveals wrongful convictions, an ACLU lawsuit, tens of thousands of dollars paid to informants, and the continuing violent crimes committed by some informants while they were working for the federal government.

Texas considers banning informant testimony in capital cases

Several states are considering new legislation to regulate informant use.  In Texas, HB 564 would ban the use of compensated criminal witnesses in death penalty cases altogether.  The bill provides that the "testimony of an informant or of an alleged accomplice of the defendant is not admissible if the testimony is given in exchange for a grant or promise by the attorney representing the state or by another of immunity from prosecution, reduction of sentence, or any other form of leniency or special treatment."  Full story at The Intercept here.  Radley Balko at the Washington Post calls the bill a "significant first step" in recognizing the inherent unreliability of informants.  As Balko, who has written about informant debacles before, puts it:

"The whole concept of jailhouse informants defies credulity. The very idea that people regularly confess to crimes that could put them in prison for decades or possibly even get them executed to someone they just met in a jail cell and have known for all of a few hours is and has always been preposterous. Not to mention the fact that these are people whose word prosecutors wouldn’t trust under just about any other circumstance."

In North Carolina, HB 700--which did not pass--would have created comprehensive regulation of jailhouse informants, including corroboration requirements, enhanced discovery, jury instructions, and data collection.  Story here.  An interesting feature of this bill was that it would have created a "rebuttable presumption of inadmissibility," placing the burden on the government to show that these risky witnesses should nevertheless be permitted to testify.

Tuesday, February 3, 2015

Attention is turning to student informants

20/20 did this special feature on "Logan," the U. Mass student who died of a heroin overdose after becoming a drug informant for campus police: The Dangers of a College Student Becoming a Campus Police Drug Informant.  U. Mass canceled its informant program after a university working group issued this critical report.

Reason just posted this story about Andrew Sadek, a 20-year-old student at North Dakota State College of Science in Wahpeton, who was shot and killed after he agreed to work as an informant:  Busted Over $80 Worth of Pot, College Student Turns Informant, Then Turns Up Dead.

Florida might step up again as a leader in this arena.  Legislators have introduced bills that would ban the use of minors and college students as informants in buy-and-bust drug operations.

Sunday, January 11, 2015

Washington Post: witness intimidation a continuing problem

This Washington Post story is entitled "Dozens in D.C., Maryland paid the ultimate price for cooperating with the police." It documents numerous recent deaths and the continued threats to cooperating witnesses.  From the story:

[A]t least 37 people in the District and Maryland [] have been killed since 2004 for cooperating with law enforcement or out of fear that they might, according to a Washington Post examination of hundreds of police and court records. . . . .
 
The Post’s review found that among those killed for cooperating with authorities or out of fear that they might: 
●At least 19 didn’t receive protection, including a confidential informant working for the Drug Enforcement Administration who was lured to a home by a drug dealer’s girlfriend and then fatally shot by the dealer. 
●At least five were killed after defense attorneys learned their names or other identifying information and told their clients. In one case, a lawyer tipped off a defendant that prosecutors wanted to interview the witness. Six days later, the witness was found dead.
●Nine were offered protection but declined, including a 38-year-old Baltimore County man who was unaware of the long criminal history — including murder, attempted murder and firearms charges — of the man he was scheduled to testify against. 
●At least five were slain after they were relocated but returned to their old neighborhoods. 
●In at least four cases, charges against a defendant were dropped after the witness was killed.