July 24, 2014

Florida Supreme Court regulates criminal informant testimony

In 2012, the Florida Innocence Commission made a series of reform recommendations in recognition of the "dangers of false informant and jailhouse snitch testimony." The Florida Supreme Court has now amended the rules of evidence to reflect those recommendations. See In re: Amendments to Florida Rules of Criminal Procedure 3.220. The Miami Herald reported the story here: Florida's high court puts brakes on snitches' testimony.

The Florida Supreme Court . . . finally has changed the rules of evidence. Beginning this month, prosecutors now are required to disclose both a summary of the jailhouse informant's criminal history and just what kind of deal a snitch will be getting in return for testimony. And now, jurors will hear about prior cases that relied on testimony from that particular informant. The justices ordered new restrictions on the much abused informant testimony, because snitches, the court noted, "constitute the basis for many wrongful convictions." It was an unanimous decision. It was about time.

The new rules require greater disclosure of an informant's criminal background, prior history of providing information to the government, and all their deals. Of particular importance, the Florida court included all informants who allege that they have evidence about defendant statements, not merely "jailhouse snitches," i.e., those who happen to be in jail at the time. The new rule also requires disclosure of benefits that the informant "expects to receive" for his testimony, and it defines benefits broadly as "anything...[including any] personal advantage, vindication, or other benefit that the prosecution, or any person acting on behalf of the prosecution, has knowingly made or may make in the future." This is an important counter to the fact that informants know that they are likely to be rewarded for providing information even if no one explicitly promises them anything up front. Thanks to EvidenceProfBlog for calling attention to this important development.

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September 24, 2013

Lowell, Mass. police sued for informant misuse

The city of Lowell, MA, is being sued, along with Officer Thomas Lafferty, for permitting the longterm misuse of informants who allegedly planted drugs on innocent people. Stories from the Boston Globe and the Lowell Sun here, here and here. Lowell has been under scrutiny for its informant policies: earlier this year a prosecutorial review cleared Officer Lafferty of wrongdoing in connection with his informant practices.

Plaintiffs harmed by informants often have a difficult time holding government actors and agencies responsible in court, since it can be hard to show that the government authorized the informants' bad behavior. For a prominent counter-example, see Estate of Davis v. U.S., 340 F.Supp.2d 79 (D. Mass. 2004) (describing a variety of legal theories under which the FBI might be held liable for murders committed by their informants Whitey Bulger and Stephen Flemmi). With growing scrutiny of and information about the government-informant relationship, the law in this regard may be due for a change.

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November 28, 2012

New informant legislation introduced in Texas

A Texas legislator has just introduced a new bill, H.B. 189, that would bar the use of compensated criminal informants in capital cases. H.B. 189 would make informant and accomplice testimony inadmissible 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." In effect, the bill embodies the sensible idea that paying criminals for their testimony is simply too unreliable to be used in death penalty cases. The Texas Tribune ran this story: Bill Would Restrict Informant Testimony in Death Cases. The bill would also bar the use of alleged confessions made to jailhouse snitches unless the confessions are corroborated by electronic recordings. In many ways Texas has been on the forefront of this issue--the state already has drug and jailhouse snitch corroboration requirements. See this post: Texas requires corroboration for informant witnesses.

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August 29, 2012

New Yorker story on young informants

The New Yorker has just published an important story on the use of young vulnerable informants. It discusses numerous cases in which young people have lost their lives trying to work off their own offenses, and reveals how common the practice is and how little protection the law and police typically provide. Synopsis here: The Throwaways: Police enlist young offenders as confidential informants. But the work is high-risk, largely unregulated, and sometimes fatal.

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May 14, 2012

Law review article on Rachel's Law

The Boston College Journal of Law & Social Justice has published this note, Toward Efficiency and Equity in Law Enforcement: "Rachel's Law" and the Protection of Drug Informants. It focuses on an important provision in Rachel's Law that was eliminated, that would have required police to provide potential informants with counsel. Here's the abstract:

Following the murder of Rachel Morningstar Hoffman--a 23-year old college graduate--Florida passed "Rachel’s Law," which established new guidelines for the police when dealing with confidential informants. Immediately prior to its enactment, lawmakers stripped Rachel's Law of key provisions. These provisions required police to provide a potential informant with an attorney before agreeing to any deal. Opponents of these provisions argue that they hamstring law enforcement agencies in their efforts to prosecute drug crimes. Rather than serving as an obstacle to effective law enforcement, the attorney provision in the original version of Rachel's Law enables efficient prosecution of crimes and protects minor drug offenders who may be unsuited for potentially dangerous undercover informant work. This Note recommends that the attorney provision be restored to Rachel's Law, and encourages other states to enact similar statutes.

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January 27, 2012

Tallahassee agrees to pay $2.6 million in informant Rachel Hoffman's death

The city of Tallahassee, FL, has agreed to settle the case over informant Rachel Hoffman's death for $2.6 million. Story here. Tallahassee police had sent Hoffman, a young inexperienced informant, on a sting operation to buy guns and drugs, during which she was killed. After Hoffman's death, the Florida legislature passed "Rachel's Law" which requires Florida police to create guidelines for the creation and use of informants. See this previous post: Florida's Rachel's Law offers some protection to informants. The Hoffman settlement is an important milestone because it acknowledges that governments may be responsible for the dangers that informants often face when trying to satisfy police or prosecutorial demands for information and cooperation. Recently, several other families have brought similar suits for the death of young informants. See here , here, and here.

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January 09, 2012

Supreme Court begins debating informant unreliability

The Supreme Court released an order today denying certiorari in Cash v. Maxwell, formerly Maxwell v. Roe, an important Ninth Circuit decision discussed in this previous post. Usually the Court does not explain cert denials, but this case generated a heated debate between Justice Sotomayor, who supported the denial, and Justices Scalia and Alito who thought the Ninth Circuit's decision should have been overturned. See SCOTUSblog post here, and L.A. Times story here.

Today's decision is important for a number of reasons. First, it shows that the Justices have joined numerous state and federal legislators in recognizing the problem of informant unreliability. Informant-based wrongful convictions are increasingly frequent in the courts and in the news, and many states have taken up the issue. See Legislation Section of the main website. Although the Court did not answer the question today, it's a sign of the times that the Justices are arguing about it.

Maxwell also shows how the legal debate over informant use is becoming less about procedure and more about substantive questions of reliability and innocence. Until recently, most informant litigation has been a fight over disclosure: the information that the government must disclose regarding its use of compensated criminal witnesses. The Maxwell case and the Sotomayor/Scalia debate squarely confront the substantive question of unreliability: how unreliable can compensated criminal witnesses be before the law restricts their use? Or to put it another way, how high is our tolerance for the likelihood of wrongful conviction? Even Justice Scalia concluded that the informant in Maxwell's case was a "habitual liar," and that there were reasons "to think it likely that [he] testified falsely" at Maxwell's trial. The Ninth Circuit took the next step, holding that the Due Process Clause does not permit such clearly unreliable evidence to be used. As a result of today's cert denial, this holding stands.

Finally, Justice Sotomayor pointed out that the Ninth Circuit relied on "an avalanche of evidence" that the informant in that case was unreliable. The existence of such evidentiary avalanches is a relatively new phenomenon. Thanks to the innocence movement and numerous new studies (see Resources & Scholarship section on the main website), courts and litigators have more evidence than ever before regarding the unreliability of criminal informants. These new data will surely change how courts consider such questions in the future.

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October 21, 2011

Congressman Lynch introduces informant legislation

In the wake of new revelations about FBI informant crimes, U.S. Representative Stephen F. Lynch (D-MA) has introduced important new legislation that would require federal investigative agencies to report their informants' serious crimes to Congress. H.R. 3228, The Confidential Informant Accountability Act, would require the FBI, the DEA, Secret Service, ICE and ATF to report every six months to Congress all "serious crimes" committed by their informants, whether or not those crimes were authorized. "Serious crime" is defined as any serious violent felony, any serious drug crime, or any crime of racketeering, bribery, child pornography, obstruction of justice, or perjury. The bill prohibits the disclosure of informant names, control numbers, or any other personal information that might permit them to be identified. Under the U.S. Attorney General's Guidelines, the FBI is already required to disclose its informants' crimes to federal prosecutors.

The bill would also help the families of two men who were killed in connection with FBI informant Whitey Bulger to recover damages from the FBI. For more background, see these stories in the Boston Globe: Bill would aid kin of two slain men, and Pants on Fire. Full disclosure: I provided information to Congressman Lynch's office in support of this bill and I am strongly in favor of the effort.

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October 13, 2011

MS-13 informant convicted of lying to prosecutors

Follow up to this post: A Rat's Life: MS-13 Informants Run Wild. In a rare turnaround, the government has prosecuted its own informant for lying to prosecutors about murders he previously committed. Roberto Acosta now faces up to five years; he argues that he was the government's main source for its case against MS-13 and without him they wouldn't have been able to get the numerous convictions they did. SF Weekly blog postings here: Feds Want Maximum Prison Time for Roberto Acosta, MS-13 Informant Who Lied and Roberto Acosta, MS-13 Informant Convicted of Lying, Wants Out of Jail

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9th Circuit clarifies DEA disclosure obligations under FOIA

The Freedom of Information Act (FOIA) empowers individual requestors to compel the government to disclose its records. Various exceptions permit the government to withhold certain records regarding informants, but the Ninth Circuit recently explained some limits to those exceptions. In Pickard v. Dep't of Justice, 2011 WL 3134505 (9th Cir., July 27, 2011), William Pickard filed a FOIA request with the DEA to get records regarding Gordon Todd Skinner, a DEA informant. The DEA denied his request by submitting a so-called "Glomar response" in which it neither officially confirmed nor denied the existence of Skinner as an informant. The 9th Circuit held that the DEA in effect had already "officially confirmed" Skinner as a confidential informant by eliciting testimony about and from him in open court at Pickard's trial, and that therefore the DEA could not avoid the FOIA request in that manner. In other words, once the government relies on an informant--either through an agent's testimony at trial regarding that informant or by using the informant as a witness--it cannot subsequently block a FOIA request by refusing to acknowledge the existence of the informant. This does not mean that the DEA necessarily has to produce records regarding its informants; it does mean, however, that it has to acknowledge the existence of such records and identify the specific FOIA exceptions that might permit nondisclosure.

This is an important decision for a number of reasons. As Judge Wallace explains in his concurrence, "the specific circumstances pursuant to which an informant's status is deemed "officially confirmed" is a matter of first impression and great importance." This is because the threshold question of whether a person is an informant at all may be a secret. Moreover, the decision clarifies that once the government decides to use an informant or his information at trial, it relinquishes much of its claim to confidentiality under FOIA. As Judge Wallace put it:

On the one hand, prosecutors frequently must rely on informants, who possess vital information, to prosecute dangerous criminals. On the other hand, the DEA and confidential informants have a different interest in secrecy and privacy than federal prosecutors. Yet, under the majority holding, an Assistant United States Attorney can eliminate that privacy interest by asking a single question--i.e., "Did you serve as a confidential informant"--in open court.

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September 16, 2011

New York officers sued for failing to protect informant

The mother of a 20-year-old informant is suing two NYPD officers for failing to protect her son who was killed an hour and a half after he tipped off his handler to the location of some guns and drugs. Story here: Mom of slain informant Anthony Velez sues cops for failing to protect him. Such suits are rarely successful--courts have been reluctant to hold police accountable for the fate of their informants, even when the government contributes to the risk. See this post discussing the government's responsibility for the safety of its informants.

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Court considers orthodox jewish rule against informing

The Talmudic laws of mesira prohibited Jews from informing against other Jews to non-Jewish authorities. This ancient "no snitching" rule is getting modern attention in the Los Angeles case of Rabbi Moshe Zigelman, an Orthodox jew who is refusing to testify against other Jewish suspects before a grand jury regarding alleged acts of tax fraud and money laudering. Story here: Jewish law goes to court: Mesira meets American justice. The story describes the Talmudic issue this way:

The concept of mesira, which literally means "delivery," dates back to periods when governments often were hostile to Jews and delivering a Jew to the authorities could lead to an injustice and even death. The rules of mesira still carry force within the Orthodox world, owing both to the inviolability of the concept's talmudic origins and the insular nature of many Orthodox communities. But they are also the subject of debate over whether the prohibition applies in a modern democracy that prides itself on due process and civil rights.

This dispute dovetails with a large issue in criminal justice: what happens to the force of criminal law when people believe it is unfair or leads to injustice? Professor Tom Tyler has written extensively about the fact that people are more likely to obey the law if they perceive it to be be fair and carried out through evenhanded and respectful procedures. See, e.g., Tom Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities?, 6 Ohio St. J. of Criminal Law 231 (2008).

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September 08, 2011

9th Circuit reverses death penalty because of lying informant

Yesterday in Sivak v. Hardison, the Ninth Circuit reversed yet another death sentence based on a lying jailhouse informant and the "State's knowing presentation of perjured inmate testimony." See also this post regarding Maxwell v. Roe. In Sivak, the prosecution used two jailhouse informants--Duane Grierson who described himself as a "chronic liar," and Jimmy Leytham, who falsely testified that he did not expect any rewards for his testimony. The Ninth Circuit concluded that these two unreliable witnesses provided the only direct evidence of Sivak's personal participation in the homicide and that therefore his capital sentencing violated due process.

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May 19, 2011

NYU Law School report criticizes use of domestic terrorism informants

NYU Law School's Center for Human Rights and Global Justice has just released this report: Targeted and Entrapped: Manufacturing the "Homegrown Threat" in the United States. The report examines three recent high profile domestic terrorism cases, in all of which informants played a central role, and argues that the use of compensated informants is creating the perception of a threat in U.S. Muslim communities where none may have existed before. From the executive summary:

Since September 11, 2001, the U.S. government has targeted Muslims in the United States by sending paid, untrained informants into mosques and Muslim communities. This practice has led to the prosecution of more than 200 individuals in terrorism-related cases. The government has touted these cases as successes in the so-called war against terrorism. However, in recent years, former Federal Bureau of Investigation (FBI) agents, local lawmakers, the media, the public, and community-based groups have begun questioning the legitimacy and efficacy of this practice, alleging that--in many instances--this type of policing, and the resulting prosecutions, constitute entrapment.

In the cases this Report examines, the government's informants held themselves out as Muslims and looked in particular to incite other Muslims to commit acts of violence. The government's informants introduced and aggressively pushed ideas about violent jihad and, moreover, actually encouraged the defendants to believe it was their duty to take action against the United States. In two of the three cases, the government relied on the defendants' vulnerabilities--poverty and youth, for example--in its inducement methods. In all three cases, the government selected or encouraged the proposed locations that the defendants would later be accused of argeting. In all three cases, the government also provided the defendants with, or encouraged the defendants to acquire, material evidence, such as weaponry or violent videos, which would later be used to convict them.

The report argues that the ways that the U.S. government uses informants to target Muslims threatens such basic legal principles as the right to a fair trial, the right to non-discrimination, and the rights to freedom of religion and expression. The report concludes with numerous policy recommendations.

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New report on informants in Mississippi's criminal justice system

Justice Strategies and the ACLU have issued a highly critical report entitled: Numbers Game: The Vicious Cycle of Incarceration in Mississippi's Criminal Justice System. The report identifies three main problems in Mississippi: harsh sentencing policies, the misuse of multi-jurisdictional drug task forces, and the heavy recruitment and use of drug informants. The informant section analyzes numerous issues, including the widespread use of snitches in low income African American communities throughout Mississippi, and the social harm that this causes. For example:

A similar pattern and practice of using neighbors and friends as confidential informants is occurring in Flora, Mississippi, a tiny town of some 1,500 residents in Madison County--an area where complaints of racial profiling are common. Local police frequently threaten low-level drug users and sellers, coercing them to "snitch" on their friends.

Josephine, is a grandmother and lifelong Flora resident. According to her, Flora has never experienced a significant drug problem.... Josephine maintains that there are at least three known informants among the young people in Flora, and that many residents are frustrated with the local police because they are forcing young people to turn each other in. With considerable nostalgia, she recalls that people in Flora used to be very neighborly; they would talk about their families, joys and troubles, but now, "everybody don't fool with each other anymore. People keeping to themselves and not inviting each other in their homes." She says that people are afraid to go out at night. "Most young guys are scared to walk the streets at night because the cops mess with them." When her 20-year-old nephew does go out at night, she fears for his safety, not because of other Flora residents, but because of law enforcement agents: "Cops know how to scare you into snitching."

From another Mississippi resident:

Some community residents view the use of CIs as not only tolerating criminal activity, but also enabling it--greatly diminishing the legitimacy of policing in their eyes. Another Mississippi mother, Sandra, says that her son's informer was allowed to continue his own criminal enterprise while turning in her son:

"They use people [who] already [have] a felony conviction and should be in prison, and give them 'paper time.' The week before they arrested my son, they search and arrest this guy. He had weed, crack and money on him. They gave it back to him and let him go on 'paper time' for snitching on my son."

The report concludes by proposing numerous reforms, including the establishment of an informant registry to keep track of people who are trying to work off their own criminal charges, a requirement that law enforcement report crimes committed by their informants, and a ban on using juvenile snitches.

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May 11, 2011

9th Circuit upholds use of jailhouse snitch in sting operation

Jailhouse informant Robert Plunkett reported to police that he had learned that attorney John Garcia was willing to deliver drugs into the Merced County jail. The police set up a sting, and Garcia accepted a bag containing methamphetamines from Plunkett for delivery to his (Garcia's) incarcerated client. As a result of this transaction, Garcia's law office was searched and he was arrested, although not prosecuted. He then sued the police for violation of his Fourth Amendment rights, in effect arguing that based on Plunkett's information they didn't have enough evidence to arrest him or get a warrant. Story here. In Garcia v. County of Merced, the 9th Circuit denied Garcia's claim, reaffirming the principle that information from informants, if properly corroborated and checked, can constitute probable cause for arrest or for a warrant. In this case, "there were at least seven to eight items of corroboration that confirm what [Plunkett reported]."

The opinion is additionally interesting because it was authored by Judge Stephen Trott, who has been an outspoken critic of the use of criminal informants and lectures prosecutors around the country on the perils of informant use. See Judge Stephen Trott, Outline of lecture to prosecutors on the use of informants. The opinion notes that jailhouse snitches are unreliable, that "the word of a jailhouse informant [] is suspect and ordinarily requires corroboration before it can be accepted as probable cause," and that "jaihouse informants can always be presumed to be looking for consideration in return for the information." In this case, however, the Court found that the police disclosed enough information to the judge who issued the warrant to put the judge on notice of Plunkett's "suspect and shaky character." That disclosure, in combination with the substantial corroboration, was enough for the warrant.

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May 04, 2011

Maryland High Court on "Snitches Get Stitches" on MySpace

Last year I posted about a Maryland case, Griffin v. State, in which a MySpace comment was used against a defendant: MySpace anti-snitch comment treated as threat. The evidence consisted of a printout of a MySpace page allegedly belonging to the defendant's girlfriend, which read: "Just remember, snitches get stitches!! U know who u are." Last week, the Maryland Court of Appeals reversed that ruling, holding that it was improper to permit the prosecution to use the MySpace comment as evidence in light of how easy it is for other users to manipulate and post information on MySpace. Here's an excerpt from Colin Miller at EvidenceProf Blog about the case:

Griffin is really a terrific opinion whether or not you agree with the court's conclusion. If you want a detailed description of what courts across the country have done so far with regard to the authentication of electronically stored information on social networking sites, you need look no further than the court's opinion.

So, why did the court find that the prosecution failed to authenticate the MySpace page properly? The court agreed with the defendant

'that the trial judge abused his discretion in admitting the MySpace evidence pursuant to Rule 5-901(b)(4), because the picture of Ms. Barber, coupled with her birth date and location, were not sufficient "distinctive characteristics" on a MySpace profile to authenticate its printout, given the prospect that someone other than Ms. Barber could have not only created the site, but also posted the "snitches get stitches" comment. The potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that Ms. Barber was its creator and the author of the "snitches get stitches" language.'

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December 01, 2010

Ninth Circuit overturns murder conviction based on perjured informant testimony

Yesterday, in Maxwell v. Roe, the Ninth Circuit decided that Bobby Joe Maxwell's due process rights were violated in 1984 when the government used Sidney "the Snitch Professor" Storch as the main witness at his multiple homicide trial. LA Times story here: Appeals Court overturns murder convictions of alleged L.A. serial killer.

This is an important case for a number of reasons. The first is historical: Storch was one of the most infamous jailhouse snitches in the Los Angeles County Jail during the 1980s, a period in which jailhouse snitch fabrication was rampant, numerous wrongful convictions occurred, and which eventually triggered a massive Grand Jury investigation and stringent reforms in Los Angeles.

The factual basis for the decision is also important. Appellate courts rarely conclude as a factual matter that a witness such as a jailhouse informant committed perjury, which is one of the reasons it is so difficult to overturn a conviction even after a witness recants. See previous post: In the news-- Recantation. In this case, the Ninth Circuit decided that "it was objectively unreasonable for the Superior Court to find that Storch testified truthfully at the 1984 trial," based on Storch's history as an informant and his other lies at trial. From the opinion:

There is simply too much evidence of Storch's pattern of perjury to conclude otherwise. At the time of Maxwell's trial, Storch was already employing the "booking" formula that he would later teach others and for which he would become famous; the housing records show that Storch had physical proximity to Maxwell; Storch openly admitted that he was in possession of a newspaper article about the murders; the newspaper article itself mentioned all of the specific facts to which Storch testified--namely, that the police had found Maxwell's palm print on a nearby park bench; and, finally, Storch contacted Deputy District Attorney Sterling Norris with the news of his cellmate's spontaneous confession and negotiated his own deal in exchange for his testimony.
In other words, it was just too likely that Storch was lying for the government to use him. As our knowledge of jailhouse informants increases, there may be more informants who fit this too-unreliable-to-testify profile.

Finally, the case has doctrinal significance. The court held that the use of Storch at trial violated Maxwell's due process rights. This was in large part because Storch was the "'make-or-break' witness for the state" and "the centerpiece of the prosecution's case" and therefore his testimony was clearly material to the outcome of the trial. Notably, the court assumed for the sake of argument that the government did not know that Storch was lying -- the due process violation flowed not from any intentional government misconduct, but because "to permit a conviction based on uncorrected false material evidence to stand is a violation of a defendant's due process rights." This is an important rule -- it is not uncommon for defendants to discover post-trial evidence that a key informant witnesses lied--either because of recantations or other impeachment evidence. See for example this post: More on the Spokane convictions. The Maxwell decision suggests that courts may be starting to take such evidence of informant perjury more seriously.

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October 05, 2010

Massachusetts Supreme Court disapproves of prosecutorial rewards to witnesses

Two witnesses in Wayne Miranda's murder trial received $2000 each from the Chamber of Commerce because their testimony assisted in producing a guilty verdict. As the Boston Globe writes, the Massachusetts Supreme Court, while approving such witness reward programs generally, has ruled that prosecutors cannot participate in them or help witnesses get rewards when those rewards are contingent on convictions. Commonwealth v. Wayne Miranda, SJC-10568. From the Court's opinion:

We recognize that, to prove the crime charged, prosecutors often need to procure the cooperation and truthful information or testimony of reluctant witnesses. The interests of justice, however, are not well served when a witness's reward is contingent on the conviction of a defendant, rather than the provision of truthful information or testimony.

While the Massachusetts Supreme Court should be lauded for its ethical concern, its decision is somewhat ironic. Prosecutors routinely provide far greater benefits to criminal informant witnesses, in the form of liberty and leniency, than a few thousand dollars. In many jurisdictions, these rewards can be contigent on conviction. And even when the rewards are not expressly contingent on conviction, every attorney and informant knows that a witness in a successful conviction is more likely to get rewarded.

This is why Professor George Harris [author of Testimony for Sale: The Law and Ethics of Snitches and Experts, 28 Pepp. L. Rev. 1 (2000)], and I have recommended leveling the playing field by creating defense informants, i.e. rewards for informants who come forward with information that might help the defense rather than the prosecution. As it currently stands, an offender with information helpful to the defense cannot expect any benefits--only the government can give those. This lopsided arrangement is, as the Massachusetts Supreme Court pointed out, not in the interests of accuracy or justice.

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October 04, 2010

Texas requires corroboration for informant witnesses

Perhaps as a result of these sorts of debacles, Infamous fake drug scandal in Dallas, Of Experts and Snitches, Texas has passed some good corroboration legislation restricting the use of drug informants and jailhouse snitches. Last year, it passed this law requiring corroboration for jailhouse snitches:

A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant's interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code. Crim. Pro. art. 38-075

Article 38-141 similarly requires corroboration before a drug informant can testify. These are steps in the right direction, although they are only partial solutions to the lying snitch problem. The key to informant unreliability is not whether the informant is involved in drugs or in jail, but whether he expects a benefit and therefore has a motivation to lie. Nebraska takes the right approach in this regard by defining "informant" to include "any criminal suspect, whether or not he is detained or incarcerated, who received a deal, promise, inducement or benefit." Neb. Rev. Stat. 29-1929. In defining informant broadly, the Nebraska legislature reasoned that "there is a compelling state interest in providing safeguards against the admission of testimony the reliability of which may be or has been compromised through improper inducements."

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September 21, 2010

Motion to Preclude Creation of Snitch Testimony

The Kansas Death Penalty Defense Unit recently filed this motion asking the court to take protective measures to prevent jailhouse snitches from being created in the case of Kansas v. Adam Longoria. Asserting that "Mr. Longoria has no intention of talking to anyone but his attorneys about the facts of this case," the motion requests that the court "take measures to ensure that no jailhouse snitches or other suspect informants are created in this case to manufacture evidence for the state." This proactive defense tactic appears to be getting more common (see previous post: Interesting effort to preempt jailhouse snitching).

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June 08, 2010

MySpace anti-snitch comment treated as threat

An appellate court in Maryland has ruled that a comment on the defendant's girlfriend's MySpace page was properly admitted at his murder trial. The comment read: "Free Boozy!!! Just remember snitches get stitches!! U know who you are!!" Daily Record story here. The comment was proffered by the government to explain why a key witness had failed to identify the defendant at a previous trial. The decision is significant for a number of reasons. For example, it shows how comments made on social networking sites by friends and family may be admissible against defendants. It also elevates common phrases such as "snitches get stitches" and "no snitching" and potentially even rap lyrics to the status of specific threat. For a more general discussion of the use of rap lyrics against defendants, see this post: ""Stop Snitching" rap song on YouTube leads to convictions."

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June 01, 2010

Attorney General Holder memo on prosecutorial charging decisions

Thanks to Sentencing Law and Policy for making Attorney General Eric Holder's new charging policy memo available here. The blog discusses reactions to Holder's new guidelines, which are described as providing more flexibility to prosecutors not to argue for mandatory minimum sentences. Of note for this blog's purposes, Holder's memo reiterates DOJ's practice of considering a defendant's cooperation during the initial charging decision. As the memo states: "In all cases, the charges should fairly represent the defendant's criminal conduct, and due consideration should be given to the defendant's substantial assistance in an investigation or prosecution." As I've argued elsewhere, this practice of charge reduction for cooperation is central to the pervasiveness and secrecy of the snitching process: a cooperating suspect will be charged differently, or perhaps not at all, in ways that may leave no paper trail. The U.S. Sentencing Commission keeps track of cooperation departures at sentencing, but charging decisions take place long before a defendant ever comes before a judge to be sentenced.

One consequence of this practice is that cooperation has become a large source of sentencing disparity, the very problem the Sentencing Guidelines were designed to alleviate. For example, an article in the June edition of Justice Quarterly concludes that substantial assistance downward departures are a significant source of inter-judge disparity: "the sentencing discounts that similarly situated defendants get for providing substantial assistance vary upon the judge handling the case," making substantial assistance departure decisions "a wellspring of sentencing disparity." Amy Anderson & Cassia Spohn, Lawlessness in the Federal Sentencing Process: A Test for Uniformity and Consistency in Sentence Outcomes, 27 Justice Quarterly 362 (2010). An earlier Sentencing Commission study found that prosecutorial offices reward cooperation very differently as well. In other words, the uniformity offered by determinate sentencing schemes--treating similarly situated offenders similarly-- does not cure the significant disparities introduced by unregulated cooperation.

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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 type
and 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.

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April 19, 2010

Jury finds police violated victim's rights by using false "snitch" label

Last week, a federal jury decided that two Los Angeles police officers violated a young woman's constitutional rights by falsely labeling her a snitch--a label that led to her death--and then failing to protect her. L.A. Times stories here and here. In an effort to get gang member Jose Ledesma to confess to a murder, police told him that Puebla had identified him as the shooter, even forging her signature on a fake photo array, although Puebla never identified Ledesma. At the same time, the jury found that Puebla and her parents also contributed to her death, and awarded no money to the family.

This is an interesting case for a number of reasons. First, the government is rarely held accountable for its use of or failure to protect informants, so the jury's conclusion that the police violated Puebla's constitutional rights by using her in the ruse and then failing to protect her could support future cases. Here is a link to the complaint in the case: Puebla v. Los Angeles, Case No. 08-3128. For another example of the trend(?) towards greater protection for informants--particularly young vulnerable ones--see this post on Florida's new informant legislation. At the same time, the Los Angeles jury apparently believed that Puebla and her family significantly contributed to her danger--finding the family 80% responsible and the police only 20% at fault. While it is unclear from the Times article why the jury came to this conclusion, the public and the criminal system often blame informants for their own injuries or even death, on the theory that they take the risk by becoming informants in the first place. In this case, the government argued that Puebla was killed, not because of the police ruse, but because she testified months later at a hearing in which she said that Ledesma was gang-affiliated.

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March 18, 2010

More on the Spokane convictions

Last month I posted this story about three men convicted of robbery based on the testimony of a jailhouse snitch in Spokane, Washington -- "Another wrongful conviction in the making?" Here's the follow-up story in the Pacific Northwest Inlander -- Justice Served? After another inmate confessed that he and the informant had framed Gassman, Statler and Larson, the defense sought a new trial but the court denied the motion. Since then, various players in the Spokane criminal system have been grappling with whether the convictions were accurate. From the article:

Spokane County Prosecuting Attorney Steve Tucker says he's not very familiar with the facts in the case, besides what he read in The Inlander. And he's not compelled to look any deeper, he says. "I don't think you realize how many calls I get like this. It's not practical. The system is taking care of it," Tucker says. "The further investigation will come from the appellate attorneys. They'll look at it."

Tucker's assumption that "the system" will take care of the problem of lying informants is misplaced. Once an informant testifies, the appellate process does not permit a court to go back and reevaluate his or her credibility--that task is left to the jury. There are also numerous legal roadblocks to challenging a conviction, even one based on shaky evidence, as evidenced by the fact that the defendants in this very case were not granted a new trial despite the new confession. In other words, informants are easy to use to get convictions, but very hard to challenge after the fact. This structural arrangement is one of the main reasons that criminal informants have become such a significant factor in wrongful convictions.

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January 29, 2010

Police raids and imaginary informants

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."

Here's a link to the Cato Institute raid map. Fitzgerald goes on to identify the problems that lead to such raids, including:

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).

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January 27, 2010

"The Forfeiture Racket"

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.

According to Balko, the U.S. Justice Department's forfeiture fund reached $3.1 billion in 2008; less than 20 percent of seizures involved property belonging to people who were actually prosecuted.

Informants play an important role in forfeiture. Not only can the government rely on informants to meet its evidentiary burden of showing that the property is connected to criminal activity, but under federal law, informants can receive bounties of as much as 25 percent of the value of the seized assets. For an overview of U.S. informant-forfeiture practices, see Joachin Alemany, United States Contracts with Informants: An Illusory Promise?, 33 Univ. of Miami Inter-American Law Rev. 251 (2002).

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December 23, 2009

FBI informants infiltrating Muslim communities

The New York Times just ran this piece entitled Muslims Say FBI Tactics Sow Anger and Fear. The piece describes the perennial tension between law enforcement's need to gather information and the needs and rights of groups and communities against whom informants are used. From the article:

Since the terror attacks of 2001, the F.B.I. and Muslim and Arab-American leaders across the country have worked to build a relationship of trust, sharing information both to fight terrorism and to protect the interests of mosques and communities. But those relations have reached a low point in recent months, many Muslim leaders say. Several high-profile cases in which informers have infiltrated mosques and helped promote plots, they say, have sown a corrosive fear among their people that F.B.I. informers are everywhere, listening. "There is a sense that law enforcement is viewing our communities not as partners but as objects of suspicion," said Ingrid Mattson, president of the Islamic Society of North America, who represented Muslims at the national prayer service a day after President Obama's inauguration. "A lot of people are really, really alarmed about this."

The book's section on political informants discusses the law and history of this longstanding tension. On the legal side, the government has substantial authority to use informants to monitor religious and political activities. Notwithstanding the First Amendment's guarantee of free speech and association, courts have made clear that the use of informants and infiltrators alone does not infringe the First Amendment rights of political or religious groups. This means that the FBI can legally send informants into mosques and churches to observe people and events. If those informants go further and actively interfere with constitutionally protected activities, the First Amendment may be violated.

The implications of informant infiltration, however, go beyond legal rules. Cases from the Vietnam War and civil rights eras describe how government informants undermined anti-war, civil rights, socialist, and other political organizations by provoking conflict and instigating illegal activities. Thirty years ago, MIT sociology professor Gary Marx wrote a seminal piece on the informant provocateur phenomenon entitled "Thoughts on a Neglected Category of Social Movement Participant: The Agent Provocateur and the Informant," 80 Am. J. Sociol. 402 (1972). Marx argued that informants can actually become an integral and problematic part of social organizations, warning that "undercover agents can seriously distort the life of a social movement; they can serve as mechanisms of containment, prolongation, alteration, or repression."

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November 10, 2009

Recruiting new informants

Here's a revealing article in the Buffalo News: Walking thin line in Village of Attica: Would-be informant says police coerced her into cooperation. It's about Bianca Hervey, a 20-year-old college student who got pulled over by police for failing to pay her traffic tickets. The police threatened to put her in jail for the night, unless she agreed to become a drug informant. Although Hervey did not use drugs or have any connections to the drug world, police told her it didn't matter--she could still work as a snitch and try to set people up. Frightened of going to jail, Hervey signed the informant agreement. When she told her father, attorney Richard Furlong, what had happened, however, he "went ballistic." Furlong went to the police and to the City of Attica and complained about the recruitment of young people into the world of drugs, but the police and the Village Board refused to change the policy.

This story illustrates how snitching has quietly become such an immense part of the criminal justice system. Many cities have policies like Attica's, in which police can recruit any potential offender as a drug informant--even a 20-year-old guilty of nothing more than a traffic violation. It was this same type of policy that led to the death of 23-year-old Rachel Hoffman in Tallahassee, Florida, and triggered Florida's ground breaking legislation on the subject of informant-creation. See post: Florida's "Rachel's Law" offers some protections for informants.

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November 09, 2009

Supreme Court hears case on prosecutorial immunity

Last week the Supreme Court heard oral argument in an important snitching case: Pottawattamie County v. McGhee. Two prosecutors are being sued for fabricating evidence -- essentially pressuring a criminal informant until he came up with the story they wanted and then using that story at trial. The issue is whether they have absolute immunity, as prosecutors typically do for trial-related decisions, or whether they were acting more like investigators and therefore would only have qualified immunity from suit. Radley Balko over at Reason has posted this comprehensive discussion of the case and oral argument. For defendants who have been convicted based on fabricated evidence, the only remedy to which they are typically entitled is the overturning of their conviction. See this post: Judge finds prosecutorial misconduct in permitting false informant testimony. A finding that prosecutors who fabricate evidence might be personally liable would significantly alter the dynamic between informants and the government.

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November 08, 2009

Federal rewards for prison snitches

The federal rules of criminal procedure have special re-sentencing provisions for informants who provide information after they have already started serving their sentences. Rule 35(b)(2) permits a court to reduce a prisoner's sentence if the government asks the court to do so more than one year after sentencing. Rule 35(b)(1) governs such requests made less than a year after sentencing. Approximately 1,700 federal prisoners got such sentence reductions in fiscal year 2008. At least one federal judge, Judge Tucker Melancon (D-LA), has complained that inviting inmates to provide information while they are in prison is an invitation to fabrication. See post: Professional prison snitch ring.

Last month, the Seventh Circuit issued an opinion interpreting Rule 35(b)(2). In U.S. v. Shelby, the court held that a district judge contemplating a motion for a sentence reduction can only reduce the sentence based on the extent of the defendant's cooperation, and not on the more general sentencing factors contained in 18 U.S.C. 3553(a) which judges are required to consider when initially sentencing defendants. By contrast, the Sixth Circuit has held that judges can consider 3553(a)'s general sentencing factors--which include things such as a defendant's likelihood of rehabilitation, prior criminal record, and other personal history--when resentencing under 35(b)(2).

This may seem like an esoteric point, but it is important for several reasons. First, it affects thousands of sentences each year. Second, judges can consider the 3553(a) factors in refusing to reduce a cooperator's sentence; they just can't consider those factors if they want to lower the sentence. The Sixth Circuit deemed this to be an unfair "one-way rachet"--the Seventh Circuit didn't. Shelby also resists the general tide of recent federal case law that favors judicial discretion, since United States v. Booker restored sentencing discretion to federal judges. (See Sentencing Law and Policy blog for detailed discussions of Booker-related developments.) The Seventh Circuit, and other circuits that agree with it, have curtailed that discretion when it comes to rewarding post-sentence cooperation.

Finally, this case is a reminder of how central snitching is to federal criminal law. With the abolition of parole, federal offenders are required to serve nearly their entire sentences, regardless of their conduct in prison, further education, or other rehabilitation. As this case makes case abundantly clear, the only chance they have to earn early release is to give information to the government.

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October 21, 2009

Of Insider-Trading, Informants,and Wiretaps

"Wall Street Meets the 'Wire,'" is a post from earlier this week on White Collar Crime Prof Blog, discussing the criminal case against billionaire hedge-fund manager Raj Rajaratnam for insider-trading. Here's a link to the news story on Bloomberg. The post focuses on the unusually aggressive use of wiretaps in the investigation, and asks whether the government was authorized under the federal wiretap statute to do so given the availability of cooperating informants. As the post explains:

Title 18 U.S.C. § 2518(3)(c) provides that a court issuing a wiretap authorization order must determine whether normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. This "necessity requirement" obligates the government to set forth a full and complete statement of specific circumstances explaining why traditional investigative techniques were insufficient or the application must be denied. In determining the sufficiency of an affidavit, a reviewing court must ensure that the issuing court properly performed [its] function and did not 'serve merely as a rubber stamp for the police'. The government is not under an obligation to exhaust all alternative means of investigation in satisfying the necessity requirement but, neither should it be able to ignore avenues of investigation that appear both fruitful and cost-effective.
Given that the government had three co-conspirators, including one as early as January 2006, acting as informants and cooperating witnesses, and that these individuals had unfettered access to Rajaratnam and others involved in the alleged conspiracies, the question arises whether the government deliberately stalled this investigation and actively resisted utilizing normal investigative techniques, hoping to induce the court into believing that only a wiretap could succeed.

The post doesn't mention it, but the government need not even get court permission for electronic surveillance if it has so-called "third party consent," i.e. if the informant agrees to record the conversation. 18 U.S.C. § 2511(2)(c).

This story illustrates the intimate legal relationship between informants and other forms of surveillance. The law privileges informant use, forcing the government to justify its use of wiretaps if informants are available--note that the post refers to snitching as a "normal investigative technique." Moreover, the law permits the government to circumvent the courts entirely and avoid asking for permission to record conversations if it can find an informant who will agree to the surveillance. The usual explanation for this hierarchy is that electronic surveillance is one of the most intrusive forms of investigation and therefore should be a means of last resort. Wiretapping is of course supremely invasive, but this fact obscures the fact that informant use can be similarly intrusive, i.e. when the government threatens friends and colleagues with criminal charges to get them to report on and record people they know. For those who are interested, Chapter Two of the book discusses informant law in detail.

The insider-trading story also hints at important differences between white collar and street/drug crime investigative tactics involving snitching. The culture of informant use is very different in these two realms: white collar informants tend to be (although not always) well controlled, represented by counsel, and provide information about past crimes, whereas drug informants tend to be poorly controlled, unrepresented, and permitted to engage in new criminal activity in order to generate evidence. At the same time, the two arenas share important features. Here's an excerpt from Chapter Seven:
White collar informing shares important characteristics with its street counterpart. Both confer a vast amount of discretionary, unreviewable authority on law enforcement. Both exacerbate power inequalities among potential offenders, as well as between vulnerable offenders and the government. In both arenas, the decision to permit cooperation means that the government is tolerating and forgiving crime, and sometimes even creating an atmosphere in which crime may flourish. And both deprive courts, and thus the public, of significant amounts of power over and information about the operations of the executive.

As informant use becomes increasingly prevalent in white collar investigations, we should expect to see more of the problems of unreliability and continued criminality that have become familiar in the street crime arena. See previous post: Committing Crime While Working for the Government.

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October 07, 2009

British "stop snitching" rap song on YouTube leads to convictions

Two british rappers have been convicted of obstructing justice for putting an anti-snitching rap song on YouTube. Story here. The two men had been arrested but not prosecuted in connection with a shooting murder last year. While the defendants claimed the song was just gangsta rap, the government argued that "the video had but one purpose--to threaten any witness to this incident to frighten them to such an extent that they would refuse to cooperate with the police."

The U.S. has First Amendment protections for art and speech that the U.K. lacks, which would make it significantly more difficult to prosecute such cases. Here, the government would have a heavy burden to show that the rap song represented a true threat aimed at a particular person and not a more general expression of anti-snitch sentiment. Although I am unaware of any such prosecutions to date, it is only a matter of time. A recent note in the Columbia Journal of Law & the Arts entitled "Can't Stop Snitchin': Criminalizing Threats Made in 'Stop Snitching' Media under the True Threats Exception to the First Amendment," addresses the legal standard. The piece argues that with sufficient specificity, some "stop snitching" songs might lose their First Amendment protection and qualify as threats, although it would be rare. As author Jacob Honigman puts it:

It might be theoretically possible--by recording a song that references a particular person or crime in a manner sufficiently serious enough to indicate that the artist actually intends to commit an act of violence, or by performing a song threatening snitches in front of a courthouse as a trial is scheduled to begin--for a hip-hop artist to cross the true threat line. But I am not aware of any such instance. This, combined with the tradition of affording all forms of music, including rap, full First Amendment protection, make it extremely unlikely that such a statement could be criminalized.

More generally, the First Amendment has not prevented rap lyrics from being used against their authors as criminal evidence. Rap songs have been admitted as evidence to show a defendant's intent or knowledge or as confessions of past criminal acts. Law Professor Andrea Dennis wrote an article on the phenomenon entitled "Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence," in which she argues that courts misapprehend the artistic significance of rap lyrics when they treat them as simple admissions of guilt or factual descriptions of a rapper's life.

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September 25, 2009

Witness intimidation, secrecy, and the right to a fair trial

Witness intimidation is a serious problem in many drug and gang-related investigations. When prosecuting certain defendants, the government needs to be able to protect its witnesses from threats and intimidation. At the same time, most defendants pose no threat to witnesses, and defendants are constitutionally entitled to know who will testify against them and to get material evidence about those witnesses. The Court of Appeals of Maryland, the state's highest or 'supreme' court, recently issued a thoughtful decision that highlights many of the tensions inherent in these two competing concerns. In Lancaster v. Maryland, in an armed robbery prosecution, the Court held that the trial judge erroneously permitted the government to withhold the names of key witnesses from the defendants before trial. The Court concluded that the government failed to support its contentions that the witnesses had been threatened or that the jailed defendants posed a substantial threat. The Court wrote:

The State failed to present any evidence regarding specific threats from Lancaster, his brother, or their associates, against the witnesses. No evidence was presented regarding Lancaster's reputation for violence . . . The state also failed to identify any persons who might have carried out the alleged threats against the witnesses as Lancaster and his brother were incarcerated at the time. . . . We further conclude that the protective order in effect tied defense counsel's hands and foreclosed him from pursuing a valuable source of information for cross-examination of the State's witnesses.
The government had withheld the names of four witnesses: two of those witnesses were accomplices in the robbery and received light sentences in exchange for their cooperation, a fact that the defendants did not learn until trial.

By contrast, in Coleman v. State, an earlier Maryland case, the Court concluded that the trial judge properly withheld witness names from the defendants. In Coleman, the defendants were part of a gang that had threatened witnesses, there was evidence of specific threats against witnesses, and the defendants in the case were accused of murder.

The Lancaster and Coleman cases highlight the contextual nature of the problem--in some cases, withholding witness names and other information unfairly prevents defendants from challenging the accusations against them, while in other cases it is a vital precaution. Courts are supposed to carefully evaluate the facts each time. All too often, however, the mere claim that witnesses might be intimidated is persuading courts and other decision-makers to keep information secret, a phenomenon I explore at length in Chapter Four entitled "Secret Justice." Here's an excerpt:
Informant practices are inherently secretive: snitches often need their identities protected for safety, while the effectiveness of informant-driven investigations turns on their clandestine nature. But the secretive effects of using informants go far beyond ongoing investigations or protecting particular informants' identities. Snitching has altered the ways that investigations are conducted and recorded; it affects public record-keeping by police and prosecutors, discovery practices, and what gets written down during plea negotiations. It has also shaped the informational rules prescribed by Supreme Court doctrine, internal judicial branch information policies, and even information-sharing between the Department of Justice and Congress. In other words, the pressure to conceal informant practices broadly affects the criminal system's culture of record keeping, adversarial information-sharing, public policy and disclosure, making the entire process less transparent and accountable.

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September 17, 2009

Florida's "Rachel's Law" offers some protection to informants

While using criminal informants can produce bad evidence and even sometimes more crime, the snitching phenomenon is problematic in other, more complex ways. Criminal snitches themselves are often vulnerable people--they may be young, undereducated, or suffering from substance abuse or mental disabilities. Indeed, this is true more generally for the majority of people in the criminal system. When police pressure such suspects to cooperate, many people feel as if they have no choice, even if cooperating is not in their best interests. Last year, 23-year-old Rachel Hoffman became an informant in Tallahassee, Florida, trying to avoid jailtime for her possession of a small amount of drugs. Police sent her on a sting operation during which she was killed. Her death triggered an outcry and resulted in ground breaking legislation to regularize the process by which police turn people into informants. My op-ed on the new law is published here in the Daily Journal, and it describes some of the law's features:

[It] creates new, basic mechanisms to protect informants and to increase police accountability. For example, Rachel's Law requires law enforcement agencies to establish policies and procedures, including recordkeeping rules, to guide police when they turn a suspect into an informant - essential regulations that most United States police departments lack. The law also requires police to tell suspects that police cannot make promises about what charges will be filed or dropped in exchange for cooperation - only a prosecutor can do that. Police must also consider an informant's suitability - including their age, maturity, and risk of physical harm - before entering into an agreement. This last requirement is a nod to the fact that many experts concluded that Rachel Hoffman was unsuited to the dangerous task that police assigned her.

The bottom line is that being an informant can be a very dangerous thing. Not only may the undercover work itself pose risks, but snitching can subject people to retribution and violence from all sort of sources. More on this in later posts.

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August 13, 2009

In the News--Recantation

When a criminal informant recants his testimony after a defendant has already been convicted, it is typically very difficult for that defendant to get a new trial. This happens more often than you might think--informants change their stories all the time, but the rules of criminal procedure and habeas corpus make it very hard to upset the original conviction. Today's New York Times reports on Fernando Bermudez, a man who tried 11 times to get his 1992 murder conviction overturned after the main witness recanted. A new judge has finally held that he might be entitled to a new trial. Mr. Bermudez also has the good fortune to be represented by my exceptionally skilled former colleague Barry Pollack, partner at Miller Chevalier.

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August 12, 2009

Pleading Guilty versus Going to Trial

Sometimes I will post about an aspect of what I call informant law - i.e. the legal rules and policies that govern the use of informants. An important but little-known fact about the rules of snitching: defendants who go to trial are constitutionally entitled to negative information about informants who might testify against them (usually referred to as impeachment or Giglio material), while defendants who plead guilty (approximately 95 percent of all felony defendants) are not entitled to this information.

Lets say Defendant Jane Smith is accused of dealing drugs, based on the say-so of criminal informant John Doe. If Smith goes to trial, the government is obligated to give her any material information in its possession regarding Doe’s credibility, including the rewards he got for cooperating against Smith, his prior convictions, instances of perjury or recantations, and things like that. The Supreme Court has held that this is necessary to ensure a fair process. But the Supreme Court also held in United States v. Ruiz that if Smith takes a plea, she has no right to see that information. This means she has to decide whether to plead guilty without knowing how credible or corrupt John Doe might be. She only gets to learn that information if she rolls the dice and goes to trial.

Ruiz is about what the U.S. Constitution requires--other rules may come into play. For example...

Continue reading "Pleading Guilty versus Going to Trial" »

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