September 07, 2009

Afghan airstrike triggered by single informant

The Washington Post reported yesterday that the NATO airstrike that killed numerous Afghan civilians was based on intelligence received from a single informant, in violation of command policy. According to the Post:

The decision to bomb the tankers based largely on a single human intelligence source appears to violate the spirit of a tactical directive aimed at reducing civilian casualties that was recently issued by U.S. Gen. Stanley A. McChrystal, the new commander of the NATO mission in Afghanistan. The directive states that NATO forces cannot bomb residential buildings based on a sole source of information.

The civilian equivalent to the McChrystal directive is the corroboration requirement, which comes in a variety of forms. A dozen or so states have an accomplice corroboration requirement stating that no defendant can be convicted based solely on the uncorroborated testimony of an accomplice. Texas has a relatively new and important informant corroboration requirement which prohibits the conviction of any drug defendant based solely on the testimony of a single informant. Texas promulgated its rule after the 1999 Tulia debacle, in which a single undercover narcotics agent falsely charged a large percentage of the town's black population, many of whom were convicted without any corroborating witnesses or evidence. The California legislature has twice passed legislation that would require corroboration for jailhouse informants--Governor Schwarzenegger has vetoed it both times. And while criminal snitches have unique problems that distinguish them from military, national security, and other kinds of informants, all classes of informants share deep unreliability risks. The NATO airstrike provides yet more evidence of the value of having and honoring corroboration requirements.

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August 26, 2009

New ABA opinion on prosecutorial duty to disclose information

The American Bar Association just released an important new opinion regarding the prosecutorial ethical duty to disclose evidence and information favorable to the defense. The rule itself requires prosecutors to "make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense." The opinion interprets this ethical mandate very broadly: it is more demanding than constitutional Brady disclosure requirements; it covers all information favorable to the defense, not just evidence; it is up to the defense, not the prosecution, to evaluate the utility of the information; the government must disclose information as soon as is reasonably practical, and the defendant cannot waive these rights or absolve the prosecutor of her disclosure duties. Here are a few key excerpts:

Rule 3.8(d) is more demanding than the constitutional case law in that it requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on a trial's outcome. . . .The rule requires prosecutors to disclose favorable evidence so that the defense can decide on its utility.

The ethical duty of disclosure is not limited to admissible 'evidence' . . .; it also requires disclosure of favorable 'information'. Though possibly inadmissible itself, favorable information may lead a defendant's lawyer to admissible testimony or other evidence or assist him [sic] in other ways, such as in plea negotiations.

For the disclosure of information to be timely, it must be made early enough that the information can be used effectively. . . . Once known to the prosecutor, [evidence and information] must be disclosed under Rule 3.8(d) as soon as reasonably practical. . . Among the most significant purposes for which disclosure must be made under Rule 3.8(d) is to enable defense counsel to advise the defendant regarding whether to plead guilty.

Where early disclosure, or disclosure of too much information, may undermine an ongoing investigation or jeopardize a witness, as may be the case when an informant’s identity would be revealed, the prosecutor may seek a protective order.

This is an extremely important opinion for informant law and practice, for several reasons...(more after the break)

Continue reading "New ABA opinion on prosecutorial duty to disclose information" »

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August 14, 2009

Informants Killing Informants

To what extent should the government employ and reward murderers, drug dealers, and other criminals as informants? In a developing case in Texas, the U.S. government is trying to figure out who killed one of its Mexican drug cartel informants. Turns out it might have been another U.S.-run informant. Story here.

I bring up this incident because it illustrates a bunch of key issues. One is just a matter of scale: there are now so many informants in the system that we get cases like these in which the government is running the people on both sides of the crime. That's how deep the phenomenon runs.

Second: The government routinely permits serious criminals to remain at large because they are useful, even though they are highly likely to commit new crimes. As one former U.S. special agent remarked about the Texas case, federal officials knew that their informant's job was tracking down people that the cartel wanted to execute. Given that, they "probably should have known he was conspiring to kill someone." Now they're mad because he may have killed one of their other informants. The problem of government-tolerated snitch crime is an old problem. Check out the 2004 congressional report at the left entitled "Everything Secret Degenerates: The FBI's Use of Murderers as Informants." Congress found it appalling that the FBI let known mob murderers remain at large because they were snitching on their rival mafia counterparts. In Chapter Five of my book, I document how the toleration for informant wrongdoing is widespread and can worsen crime and insecurity in inner city communities.

Finally, the Texas story reminded me of Troy Smith. As part of his informant deal, Troy Smith had to produce six arrests of other people in order to avoid drug charges himself. When he tried to sell meth to another informant as part of his quota, he got busted. Because of a procedural mistake by his lawyer, Smith could not raise the "public authority" defense, i.e. the claim that the government authorized him to commit the crime. Smith is currently serving a 12-year sentence, arguably for doing exactly what the government told him to do. I tell this story not only because it seems ironic and unfair, but because the pervasive use of informants invites precisely this kind of debacle.

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Snitching by Alexandra Natapoff A Barnes & Noble Best Pick of 2009

2010 ABA Silver Gavel Award Honorable Mention for Books
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