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."

Permalink | Comments (0) | TrackBacks (0)

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."

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).

Permalink | Comments (0) | TrackBacks (0)

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.

Permalink | Comments (1) | TrackBacks (0)

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 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."

Permalink | Comments (0) | TrackBacks (0)

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.

Permalink | Comments (2) | TrackBacks (0)

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.

Permalink | Comments (0) | TrackBacks (0)

"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.

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.

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.

Permalink | Comments (0) | TrackBacks (0)

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.

Permalink | Comments (0) | TrackBacks (0)

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.

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.

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.

Permalink | Comments (0) | TrackBacks (0)

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.

Permalink | Comments (0) | TrackBacks (0)

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" »

Permalink | Comments (5) | TrackBacks (0)