April 01, 2014

Air Force academy pressures cadets into snitching

The Colorado Springs Gazette ran this extensive story about "a secretive Air Force program [that] recruits academy students to inform on fellow cadets and disavows them afterward." Story here: Honor and Deception, and also Fox News story here. The program--which pressures cadets, especially those of color, into violating Academy rules under pressure of expulsion--appears to exhibit the classic corrosive costs of informant culture. From the Gazette report:

For one former academy student, becoming a covert government operative meant not only betraying the values he vowed to uphold, it meant being thrown out of the academy as punishment for doing the things the Air Force secretly told him to do....Eric Thomas, 24, was a confidential informant for the Office of Special Investigations, or OSI -- a law enforcement branch of the Air Force. OSI ordered Thomas to infiltrate academy cliques, wearing recorders, setting up drug buys, tailing suspected rapists and feeding information back to OSI. In pursuit of cases, he was regularly directed by agents to break academy rules....Through it all, he thought OSI would have his back. But when an operation went wrong, he said, his handlers cut communication and disavowed knowledge of his actions, and watched as he was kicked out of the academy....The Air Force's top commander and key members of the academy's civilian oversight board claim they have no knowledge of the OSI program. The Gazette confirmed the program, which has not been reported in the media through interviews with multiple informants, phone and text records, former OSI agents, court filings and documents obtained through the Freedom of Information Act. The records show OSI uses FBI-style tactics to create informants. Agents interrogate cadets for hours without offering access to a lawyer, threaten them with prosecution, then coerce them into helping OSI in exchange for promises of leniency they don’t always keep. OSI then uses informants to infiltrate insular cadet groups, sometimes encouraging them to break rules to do so. When finished with informants, OSI takes steps to hide their existence, directing cadets to delete emails and messages, misleading Air Force commanders and Congress, and withholding documents they are required to release under the Freedom of Information Act. The program also appears to rely disproportionately on minority cadets like Thomas.

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June 29, 2012

NYT Magazine on the complexity of snitching

Some of you may remember Alex White, the Atlanta informant who revealed the police corruption that killed 92-year-old Kathryn Johnston. This Sunday's NYT Magazine details the often unbelievable twists and turns of that saga, from Johnston's shooting to White's career as a snitch for multiple local and federal agencies, to the Congressional hearing and prosecutions that ensured. A great window into the police/informant world: A Snitch's Dilemma.

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May 14, 2012

In the news: released jailhouse informant accused in new murder

The Louisville Courier-Journal reports on a jailhouse informant who was released in exchange for his testimony. Two months later, he was charged in the murder of a 15-year-old. From the story:

Jefferson Circuit Court Judge McKay Chauvin told James Mallory in February that he wasn't a good choice to be released from prison on shock probation, given his criminal history -- and, in fact, the judge had already denied the request previously.

But Chauvin nonetheless released him at prosecutors' request after Mallory came forward with what he called "bombshell" information in a letter offering the Jefferson Commonwealth's Attorney's Office evidence against several defendants in exchange for helping him get out of a nine-year prison term.

Now, just two months later, Mallory is charged with murdering a 15-year-old boy.

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In the news: Seattle ATF informant with history of crime against women

A story by the Seattle Times about an ATF informant with a disturbing history of violence against women: Violent criminal on federal payroll as informant. The story begins like this:

Despite a history of abusing women and violent behavior in prison, Joshua Allan Jackson managed to become a federal informant, trigger a citywide Seattle police alert and hold a 18-year-old woman as his sexual prisoner.

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February 08, 2012

FOX News story on informants in Boston

FOX Undercover in Boston ran this story on the dangers of informant use: Informants cutting deals to continue lives of crime. Congressman Stephen Lynch was interviewed for the story. Lynch is the author of the Confidential Informant Accountability Act, see this post. When asked whether he was worried that informants get a "free pass," here is what he said:

"It's worse than that. They get a free pass to continue their criminal enterprise. They get protection, basically amnesty. I just think there's a corrosive element to this confidential informant program."

By contrast, former U.S. Attorney Michael Sullivan focused on the benefits that informants can provide when investigating corrupt organizations:
"Particularly as you're looking at things like organized crime, they played a critical role with regard to putting matters together in order to infiltrate the organization. It took a long time for the government to penetrate these organizations, and they did it initially by using informants, finding people who had some vulnerabilities and then exploiting those vulnerabilities and getting them to become government cooperators."

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April 28, 2011

A Rat's Life: MS-13 Snitches Run Wild

Another great story this week in SF Weekly, A Rat's Life: MS-13 Snitches Run Wild While Turning State's Evidence by Lauren Smiley. The subheading reads: "To bring down the infamous MS-13 gang, the government recruited and perhaps enabled the gangsters themselves." The story details the career of MS-13 gang member and ICE informant "Bad Boy," who appears to have intentionally racheted up the violence and gang activities of the 20th Street Clique--including recruiting and tatooing young new members--in order to help the government make cases. Due to Bad Boy and several other informants, this gang RICO case is riddled with snitch problems. From the story:

In a triumphant press conference held by federal officials and then-U.S. Attorney Joe Russoniello about the takedown, Bad Boy didn't get a mention. Nor did Jaime "Mickey" Martinez, a former gang leader who would later testify to participating in car thefts and a shooting during his time as a government snitch. Federal law enforcement didn't mention paying these informants thousands of dollars, relocating their families, or letting them stay in the country and giving them work permits.

No wonder: The informants are becoming an increasing liability. One defendant claims he was arrested for committing the crimes he was supposedly informing about, and is now suing the city and his federal handlers. As seven defendants started a trial this month facing sentences of up to life in prison, defense attorneys are claiming entrapment. "The government created much of the violence," Martin Sabelli said in his opening statements. "The prosecution went awry and [my client] was induced, cajoled, and pressured to commit crimes he was not otherwise predisposed to commit," said Lupe Martinez.

This case is unusual in another way. Although the government almost never brings perjury charges against its own informant witnesses, Bad Boy is being charged with making false statements to the government for failing to disclose all of his own past crimes. Ironically, this is a good sign, since at a fundamental level it is up to the government to police the reliability of its own informants.

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March 16, 2011

Los Angeles jury convicts British man based on jailhouse informant

Neil Revill was convicted today of a double murder based largely on the testimony of jailhouse informant Benjamin Chloupek. Revill was accused of killing a fellow meth user Arthur Davodian, who ironically was himself a police informer who may have given information to the police about Revill. Chloupek testifed that Revill confessed the details of the murder to him while they were incarcerated. Chloupek, whose substantial criminal record includes convictions for manslaughter and child abuse involving the death of an 18-month-old, "admitted approaching detectives with his account in the hope of obtaining a lenient sentence on a burglary case he was facing."

The use of jailhouse informant witnesses in Los Angeles has become a rarity. After a scathing Grand Jury investigation in 1990 in which rampant abuses of informants were uncovered in the Los Angeles jail, the District Attorney's office clamped down, creating new corroboration restrictions, a central jailhouse informant index and committee, and requiring high-level approval before such witnesses could be used. The District Attorneys office states that it has approved the use of jailhouse informant witnesses only six times since 2006. Here's the Los Angeles Times story: Jailhouse informant plays a critical role in trial for a brutal double murder.

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January 14, 2011

Contract killer avoids death penalty by cooperating

Washington Times journalist Jim McElhatton has written another revealing story about the violent dynamics of snitching: this one on seven-time killer Oscar Veal who cooperated against the violent Washington DC drug gang that hired him. In exchange, Veal escaped the death penalty and was sentenced to 25 years, half of which he has already served. Story here: A killer deal: be a star witness, escape execution. Based on thousands of pages of newly obtained documents, the Times story offers a rare window into the secretive dynamics of such arrangements. From the story:

Veal, 39, shot and killed seven people. A contract killer for a large drug ring and murder-for-hire operation a decade ago, he cooperated with prosecutors and became a star witness for the government. Kevin Gray, the lead defendant in one case in which Veal testified, alone was convicted in Washington of taking part in a record 19 murders.

But there is a price to be paid for such testimony. Veal could have faced the death penalty. Instead, he has completed about half of a 25-year prison term -- less than four years for each of the execution-style murders he committed. At his 2005 sentencing, which has not been previously reported, a relative of one victim said she will pray until her dying breath that Veal never sees the streets again. And attorneys for the men he testified against portrayed him as a snitch willing to lie in court to save himself.

The Veal story starkly illustrates the trade-offs of the criminal informant deal. On the one hand, deals with murderers like Veal are one of the only ways the government can go after violent criminal organizations. On the other, society pays a significant price, not only because Veal will walk the streets again but because offenders like him know that the most heinous of crimes can be worked off in exchange for cooperation.

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December 11, 2010

Afghan drug lord was paid CIA and DEA informant

From today's NY Times "Jailed Afghan Drug Lord was Informer on U.S. Payroll":

When Hajji Juma Khan was arrested and transported to New York to face charges under a new American narco-terrorism law in 2008, federal prosecutors described him as perhaps the biggest and most dangerous drug lord in Afghanistan, a shadowy figure who had helped keep the Taliban in business with a steady stream of money and weapons. But what the government did not say was that Mr. Juma Khan was also a longtime American informer, who provided information about the Taliban, Afghan corruption and other drug traffickers. Central Intelligence Agency officers and Drug Enforcement Administration agents relied on him as a valued source for years, even as he was building one of Afghanistan's biggest drug operations after the United States-led invasion of the country, according to current and former American officials. Along the way, he was also paid a large amount of cash by the United States.
For more on the increasingly common terrorism/drug informant connection, see David Headley: another drug/terrorism informant works both sides.

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October 01, 2010

A rare rebuke to the government

Today's New York Times opines about the FBI's sordid 15-year history of covering up for two of its top informants, James "Whitey" Bulger and Stephen "the Rifleman" Flemmi. The government's mishandling of these two seasoned criminals has generated numerous criminal cases, law suits, and a scathing 2004 Congressional inquiry entitled "Everything Secret Degenerates: The FBI's Use of Murderers as Informants." In this latest episode, last week Judge William Young ordered the U.S. Department of Justice to compensate the families of two Flemmi/Bulger murder victims because of how government lawyers had "bullied and maligned" the families during litigation.

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June 11, 2010

At least five imprisoned based on lying drug informant

Watch this video news clip from WINK-TV News (an ABC affiliate) in Florida: "Convicted felon: lying confidential informant sent me to prison." The informant, Shakira Redding, admitted that she set up innocent people by fabricating drug deals: she'd buy drugs in advance and hide them on her body to provide to the drug task force as "evidence" after the alleged deals. The government had promised her money, a home, and custody of her children if she provided incriminating evidence against others. Romill Blandin was one of Redding's innocent targets who spent 20 months in prison after Redding made a video of a man in a car that she claimed was Blandin, and then picked Blandin out of a line-up. Tellingly, Blandin never saw the video before he pled guilty--his public defender told him that he couldn't see it unless he went to trial and that his criminal record made it likely that the jury would convict him. He chose to plead guilty instead of risking a longer sentence.

This story is an almost exact replay of the Hearne, Texas debacle in which a confidential informant working for the local drug task force set up dozens of innocent African Americans. The Hearne case was the subject of the movie "American Violet," and an ACLU lawsuit. Here's the description from the book's introduction:

In the economically troubled town of Hearne, Texas, 27-year-old criminal informant Derrick Megress wreaked havoc. In November, 2000, a federally-funded drug task force swept through the town arresting twenty-eight people, mostly residents of the Columbus Village public housing project. Megress, a suicidal former drug dealer on probation facing new burglary charges, had cut a deal with the local prosecutor. If he produced at least 20 arrests, Megress's new charges would be dropped. He'd also earn $100 for every person he helped bust. One of his innocent victims was waitress Regina Kelly, mother of four, who steadfastly refused to plead guilty and take a deal for probation even as she sat in jail for weeks. Another target, Detra Tindle, was actually in the hospital giving birth at the time that Megress alleged that she had sold him drugs. A lie detector test finally revealed that Megress had lied--mixing flour and baking soda with small amounts of cocaine to fabricate evidence of drug deals. Charges against the remaining Hearne suspects were dropped, although several had already pleaded guilty.

Such stories are not aberrations; drug task forces are large-scale users of criminal informants in which the risks of fabrication are high. Massachusetts, for example, reports that in 2005-2006 its federally-funded drug taskforces relied on over 2000 confidential informants who made 45 percent of the taskforces' controlled buys.

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May 24, 2010

Cycling world grapples with "snitching"

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

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

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May 10, 2010

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

Another large-scale informant crime spree, this one courtesy of a Grits comment. In this story, ABC News Primetime documented how U.S. Customs authorized its informant, Rodney Matthews, to import tons of cocaine into the U.S., much of which ended up on the streets. Here's the link to the Primetime transcript. Caught with a few hundred pounds of marijuana, Matthews became a Customs informant and starting importing cocaine with the government's blessing. While all the Customs officials interviewed acknowledged that such deals are routine, they disputed whether the drugs were permitted by the government to hit the streets: Agent Tom Grieve said it wasn't authorized, while Mark Conrad of Customs internal affairs concluded that Grieve was lying to cover up the debacle. From the transcript:

FORREST SAWYER (Primetime) Was there anything said, anything that could have been in your wildest imagination misinterpreted to mean that Rodney Matthews could bring in a load and let it hit the streets?

AGENT TOM GRIEVE No. Not hit the streets. No, no, no, no. No. See, that's-no, n o.

FORREST SAWYER Tom Grieve says that there was no carte blanche, nothing like carte blanche.


FORREST SAWYER ( VO ) Mark Conrad runs internal affairs for Customs in Houston. A 27-year veteran, Conrad spoke to PrimeTime in New York over the objections of the Customs Service.

MARK CONRAD We got in bed with Rodney Matthews and the importation of a humongous amount of narcotics coming into the United States.

FORREST SAWYER And the reason wasn't because they were dirty?

MARK CONRAD No. The reason is there's a great deal of pressure on agents in the field to make cases, to make the big one. And the bigger, the better.

FORREST SAWYER ( VO ) In fact, more than a dozen agents and former drug enforcement officials told us that letting dope hit the streets is the cost of doing business, that while the Matthews case is extreme, it's just the tip of the iceberg.

Matthews' former partner Jimmy Ellard got an even more dramatic deal. He had fled to Colombia and became a top transporter for drug kingpin Pablo Escobar. When he was caught in Florida, Ellard pled guilty to importing $6 billion [sic] worth of drugs into the U.S., and orchestrating a fatal airplane bombing. Ellard earned leniency by accusing several Customs officials of corruption. The officials were exonerated; Ellard served only six years in prison.

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April 28, 2010

48 Hours report on killer FBI informant

CBS/48 Hours ran this special investigative report on serial killer-FBI informant Scott Kimball. Kimball--a long-time felon--was sharing a prison cell and saw a photo of his cellmate's girlfriend, Jennifer Marcum. Kimball concocted a story about a murder-for-hire scheme in order to secure his own release, and then--while working for the FBI as an informant--proceeded to murder Marcum and at least two other women. When Marcum's parents approached the FBI with their suspicions, Kimball's FBI handler dismissed them. This dynamic is one of the major dangers of informant reliance: not only was Kimball able to use his status as a jailhouse snitch to gain release based on fabricated evidence, but his snitch status and relationship with the government protected him, at least initially, from investigation.

This story reveals, among other things, that there are no clear lines between jailhouse snitches and working informants--one can morph into another and, all too often, take the government along for the ride. This fact should influence those states--including California, Illinois, and Texas, to name but a few-- that are considering jailhouse snitch reforms. The same concerns about unreliability and criminal conduct are present whenever any criminal informant--in or out of jail--trades information in order to escape punishment for his own crimes.

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March 14, 2010

Even jurors were worried about informant reliability

On Friday, a Denver jury convicted Willie Clark in the killing of Denver Bronco Darrent Williams during a drive-by shooting. Much of the case, although not all, was based on the testimony of heavily rewarded criminal informants. Stories here and here. One witness in particular, Daniel "Ponytail" Harris, admitted to being in the car from which the bullets came, and testified that he saw Clark, and only Clark, shoot out the window at the limousine in which Williams was riding. Harris was facing a life sentence for an unrelated federal drug charge, but in exchange for his testimony, he will see that sentence cut down to five years. He will also avoid being prosecuted for the shooting himself. Another witness, gang member Vernone Edwards, will get a decade shaved off his crack-cocaine trafficking sentence. This sort of heavily compensated, self-serving testimony is one of the prime reasons that informant testimony has become such a problematic source of error. Three alternate and released jurors who spoke to reporters after the case was over said they did not believe Harris. One of the lead prosecutors in Harris's drug case candidly explained that prosecutors can only do their best to determine whether such witnesses are telling the truth.

It used to be that informant unreliability issues were litigated, if at all, on habeas, or by volunteer attorneys at innocence projects long after the case was over. Those days are coming to an end. With heightened public and media awareness of the problem, I predict that we will see more cases in which the problem of informant reliability is addressed early on in the process, at trial or on appeal, and not, as so often has happened in the past, as an afterthought or not at all.

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February 11, 2010

NPR series on "House of Death" informant

NPR is running a three-part series on the federal informant connected to the so-called House of Death murders that occurred six years ago in Ciudad Juarez, Mexico: The Case of a Confidential Informant Gone Wrong. For additional coverage of this story, see this 2007 Dallas Observer feature entitled House of Death. The informant, who was known as "Lalo" to his handlers, was working for the federal Immigration and Customs Enforcement agency (ICE) even as he participated in drug-cartel-ordered executions. Top ICE officials deny knowledge of the murders and claim that "rogue agents" failed to follow guidelines, while Lalo's handler, Agent Raul Bencomo, says his supervisors knew about the killings. According to NPR, ICE withheld information about Lalo's role in the murders from the DEA and from Mexican officials. Former DEA Special Agent Phil Jordan describes the Lalo case as a disaster in which every rule was broken.

Even if the man was John Gotti in his prime, you do not allow an informant to run the investigation; you do not let the informant commit felonies, to commit murder. In my mind, he was given a license to kill.

Jordan testified in the now-defunct civil suit against ICE brought by relatives of the slain House of Death victims, two of whom were U.S. residents.

Lalo has been in federal custody for five years. Now that the case against Lalo's target is over, ICE is trying to deport him back to Mexico.

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January 13, 2010

Patt Morrison Show and L.A. Times investigative reporter Ted Rohrlich

Last week I did the Patt Morrison Show on KPCC (you can listen here), with prize-winning former L.A.Times investigative reporter Ted Rohrlich. Over the years he's done some great stories on informants. For example, in Trading Lies for Freedom, Rohrlich reported on several professional jailhouse snitches in the Los Angeles County jail system, including the now-infamous Leslie Vernon White of 60 Minutes fame. The piece describes the "variety of techniques" used by snitches to fabricate confessions:

To gather the information that will make a confession appear plausible, informants have used a variety of techniques, ranging from the artful to the crude. Some informants, for example, have carefully maintained files of newspaper and magazine articles on sensational criminal cases, or have stolen legal documents from the cells of other inmates. They have conned fellow prisoners, even those who have insisted on their innocence, into giving up key details of the cases against them. Some have pretended to be jailhouse lawyers offering free advice. Others merely have asked why someone is in jail, then transformed the most sincere protestations of innocence into admissions of guilt. Informants have purchased information from other informants for money, candy or cigarettes. Some informants have testified that they received inside information from police.

In Authorities Go Fishing for Jailhouse Confessions, Rohrlich described how some detectives purposefully placed suspects in the LA jail "snitch tank," hoping that the resident informants would come up with incriminating confessions. The story begins as follows:

The homicide detective thought he knew the identity of a murderer but couldn't prove it. To make his case, he wanted a confession. But his suspect wouldn't talk. Los Angeles Police Detective Philip Sowers did what one prosecutor said a lot of detectives do. He turned to the informant tank at Los Angeles County Jail for help. Sowers arranged for jailers to place his suspect, who was not an informant, in the special section of the jail reserved for informants -- inmates who habitually tell police that other inmates have confessed to murders or other serious crimes. Within days, Sowers had reports from four informants, known to detectives as "friendlies," that his suspect had confessed.

Finally, Rohrlich wrote a more recent piece on the Rampart scandal, entitled Scandal Shows Why Innocent Plead Guilty. This is a particularly important article because it describes a common but nearly invisible problem in the criminal system: how the plea bargaining process pressures innocent people to plead guilty.
Joseph Jones had quite a choice. He could plead guilty to selling drugs he had not sold and serve eight years in prison. Or he could risk being convicted at trial and, as a three-time loser, be sentenced to life. Ex-felon Miguel Hernandez was offered a similarly absurd "break." He could give up 16 months of his life by pleading guilty to possessing a weapon he had never had. Or he could demand a trial and face the possibility of four or more years in prison. In offering criminal defendants these kinds of Hobson's choices, prosecutors and judges did not set out to induce innocent men to plead guilty--although that is what they did. The prosecutors and judges merely accepted the word of Los Angeles police that the men were guilty.

While this piece tells the story of innocent people who pled guilty because police gave false information, a similar dynamic is at work when innocent people are confronted with false information from a snitch.

Each of these articles is important in its own right, shedding light on specific criminal justice failures. They also remind us that journalism plays a crucial role in maintaining the accountability of a criminal process that rarely volunteers information about its own mistakes.

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January 06, 2010

New Jersey Record: Right-wing radio host was an FBI informant

The New Jersey Record reports that ultra-right-wing radio host/blogger Hal Turner worked for over five years for the FBI. Turner was tried last month for threatening three federal appellate judges in Chicago: Judges Posner, Easterbrook, and Bauer. Turner's case ended in a mistrial and he is scheduled to be retried in March. According to the Record, Turner was paid and coached by the FBI while he broadcast neo-Nazi and white supremacy views over the radio and internet:

As Turner took to his radio show and blog to say that those who opposed his extremist views deserve to die, he received thousands of dollars from the FBI to report on such groups as the Aryan Nations and the white supremacist National Alliance, and even a member of the Blue Eyed Devils skinhead punk band. Later, he was sent undercover to Brazil where he reported a plot to send non-military supplies to anti-American Iraqi resistance fighters. Sometimes he signed "Valhalla" on his FBI payment receipts instead of his own name.
His dual life of shock jock and informant offers a window into the murky realm of domestic intelligence in the years after the Sept. 11 terror attacks — in particular, the difficult choices for the FBI in penetrating controversial fringe groups with equally controversial informants. In interviews, he said the FBI coached him to make racist, anti-Semitic and other threatening statements and now he feels double-crossed by the bureau after his arrest. The documents reviewed by The Record, however, show repeated instances of federal agents admonishing Turner for his extremism.

Government support for active informants often creates this kind of chicken-and-egg problem. It is hard to know whether the informants would have committed their new offenses if they hadn't felt protected or authorized by the government. Cooperating drug dealers, for example, often assert that their government handlers condone their ongoing illegal activities. Similarly, the Record reports that Turner's threatening rhetoric towards the federal bench was affected, at least in his mind, by his relationship with the FBI:
Turner blames the FBI, saying that while agents never said he could threaten judges, they coached him on the limits of what he could say. As a result, Turner said he felt he had wide latitude. "I was given specific instructions," he said.

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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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December 15, 2009

A witness intimidation crisis in Philadelphia

WSJ Blog picked up this lengthy story from the Philadelphia Inquirer, documenting rampant witness intimidation, violence, and the inability of city prosecutors to prosecute violent crimes. One witness saw his own written statement to police posted on a wall as a flier, with the following words scribbled on it: "Don't stand next to this man. You might get shot." From the Inquirer:

"It's endemic. People are frightened to death," said District Attorney Lynne M. Abraham. "We've had witness after witness intimidated, threatened, frightened." And the city cannot guarantee their protection. "That fear, that's real," said Jamie Egan, a former city prosecutor. "When people would ask me if I could guarantee their safety, I would say, 'Unfortunately, I cannot.'" Abraham has long fought for more money to protect and relocate witnesses in criminal cases. For 15 years, she has repeatedly complained, to no avail, that the city's program was underfunded and failing to meet a crucial need. Local funding for witness relocation is a fraction of the spending in the vaunted federal witness-protection program. Efforts to pump city money into the local program have failed year after year.

Witness intimidation is part and parcel of the more general violence, insecurity, and lack of resources in so many inner city neighborhoods. According to the National Institutes of Justice, witness intimidation is a longstanding problem in poor, high-crime communities like Philadelphia, especially in gang-dominated neighborhoods. Over a decade ago, studies warned about localized violence and witness intimidation in areas of concentrated poverty and crime. Stories like the Inquirer's suggest that the problem is now even more widespread. As I argue in the book, states need resources comparable to the federal WITSEC program to protect witnesses, particularly poor witnesses who lack resources themselves and may be stuck in violent neighborhoods. As a parent of a murdered young witness mourned in the Inquirer article:
"If you see something, you better look the other way. That's a sad thing to say to a victim, but I'm the number one candidate saying 'Don't tell nothing unless you can take care of yourself, because the city don't have nothing in place to help you.'"

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November 30, 2009

Infamous "fake-drug scandal" informant re-convicted in Dallas

In 2001 in Dallas, Channel 8 TV and the Dallas Morning News revealed how a ring of police and their paid narcotics informants planted fake drugs (gypsum) on innocent Latino immigrants in order to inflate department drug bust statistics. Many of those innocent victims were deported before the scam was discovered. Now the main informant in that ring--Enrique Martinez Alonso--has been convicted again, this time for counterfeiting. See this post from GritsforBreakfast for an overview; here's the story from the Dallas News. This story is a classic example of how snitches can leverage cooperation to avoid punishment for ongoing serious crimes. Not only did the six informants led by Alonso earn $440,000 for their roles in the fake drug scandal, but Alonso's subsequent criminal sentences were drastically reduced because of his cooperation with authorities--he served five years before being deported in 2007, while his brother received a 20-year sentence. As Grits points out:

Enrique was always portrayed by the media and officialdom as the main informant working with Delapaz (and the seven other officers who allegedly faked field tests claiming Alonso's drugs were real), so it's somewhat shocking to learn he received a sentence only 25% of his brother's. That's a steep discount for his second stint as an informant - this time against his co-conspirators and police "handlers." This fellow keeps being compensated for snitching on others - by Dallas police, by the feds - even when he appears to be at the center of the criminal activity in question.

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October 29, 2009

Life imitating art imitating life...

A vice president of a multimillion dollar company turns informant to avoid liability, surreptitiously taping his high-level colleagues who are eventually charged with corporate fraud. If this sounds like the plot of the movie "The Informant" (reviewed here), it is. But it is also the plot of this news story about the theft of $2 million worth of fuel from the Mexican oil company Petroleos Mexicanos: "Ex-Bush aide tied to stolen oil case." Here's an excerpt:

Josh Crescenzi of Houston, former vice president for Continental Fuels of San Antonio, has been cooperating with agents of U.S. Immigration and Customs Enforcement for several months, helping them secretly record conversations that have resulted in the conviction of a Houston oil industry executive, another one from San Antonio and the president of a small oil and gas company in Edinburg.

Stories like this (and this) suggest that the use of active informants in white collar investigations, i.e. using cooperating suspects to actively snare high-level corporate offenders in ongoing wrongdoing, is on the rise, although since the whole arena is shrouded in secrecy it's hard to say if the practice is now more prevalent or we are just hearing more about it. In any event, because white collar informants and defendants are better resourced and represented than your typical street or drug snitch, we should expect such cases to improve the overall visibility and accountability of informant practices. As sociology professor Gary Marx wrote 20 years ago in his landmark book "Undercover: Police Surveillance in America":
When lower-status drug dealers and users or prostitutes were the main targets [of covert operations,] the tactic tended to be ignored, but when congressmen and business executives who can afford the best legal counsel became targets, congressional inquiries and editorials urging caution appeared.

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October 27, 2009

"ICE agents mishandle informants"

The Associated Press reports that the federal Immigration and Customs Enforcement (ICE) agency is having the same sorts of informant problems that its FBI and DEA counterparts have long struggled against. Here's an excerpt from the story:

One immigration agent was accused of running an Internet pornography business and enjoying an improper relationship with an informant. Another let an informant smuggle in a group of illegal immigrants. And in a third case, an agent was investigated for soliciting sex from a witness in a marriage fraud case.
These troubling misdeeds are a sampling of misconduct by federal Immigration and Customs Enforcement personnel as the agency seeks to carve out a bigger role in the deadly border war against Mexican drug gangs.
According to documents obtained by The Associated Press under the Freedom of Information Act, ICE agents have blundered badly in their dealings with informants and other sources, covering up crimes and even interfering in a police investigation into whether one informant killed another.

I blogged about this last incident a couple of months ago--see Informants Killing Informants. Now it appears that ICE deliberately steered El Paso police in the wrong direction to protect their murderous source. This behavior is reminiscent of the FBI's cover-ups of mafia informant murders and other crimes in the 1980s and 90s. Indeed, the official toleration and facilitation of crime is the core compromise at the heart of snitching, and suggests that insofar as ICE is making informants the centerpiece of its border strategy, its problems in this arena are only just beginning.

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October 12, 2009

Huffington Post on jailhouse snitches and exonerations

Today's Huffington Post reports on the recent death row exonerations of Yancy Douglas and Paris Powell--both men were convicted based solely on in-custody or "jailhouse" snitch testimony. The post was written by John Terzano, president of the Washington D.C.-based Justice Project, which has produced a report on jailhouse snitch use and policy recommendations. Here's an excerpt from the post:

These exonerations highlight the power prosecutors have in securing convictions by utilizing in-custody informant testimony, even when no physical evidence links a defendant to the crime. Testimony by in-custody informants or "jailhouse snitches" as they are often referred, is a leading cause of wrongful convictions. With little to lose, jailhouse snitches have great incentives to provide false information to prosecutors in exchange for leniency or other forms of compensation. Deals that are made between prosecutors and jailhouse snitches do not often come to light when a jury has to weigh the evidence is a case.

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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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October 01, 2009

Derrion Albert's death, "Stop Snitching," and people's reluctance to talk to police

Yesterday on CNN, Anderson Cooper reported on the terrible story of 16-year-old Derrion Albert who was beaten to death by four other teenagers in Chicago. The beating was captured on videotape--story here. Four people have been charged so far. Police Superintendant Jody Weis told Cooper that no one has come forward to identify three other potential perpetrators, even though numerous people witnessed the event. Weis stated, "We are literally getting killed by this code of silence, this no-snitching rule. We've worked hard to overcome it." Cooper responded as follows:

This is something we focused on a lot on this program over the years. I did a piece on 60 Minutes about it as well. This whole stop snitching effort, rappers are telling people don't be a snitch. And now the definition of a snitch is not just somebody who is involved in a crime and tries to rat out someone else they were involved with. Now there's this horrible definition of being a snitch is anybody who comes forward and talks about a crime they've seen. That's just the mentality that cannot be tolerated.

"Stop snitching" is an important phenomenon in urban criminal law enforcement; it is also deeper than comments like Cooper's suggest, which is why I devote an entire chapter of the book to it. In a nutshell, "stop snitching" is the legacy of three related trends: drug enforcement's heavy use of criminal snitches, increased gang violence against witnesses, and decades of mistrust between police and poor minority communities. While it is true that rappers often write songs that say "don't snitch," rap music should not be blamed for the fact that law-abiding residents of high-crime inner city neighborhoods are often too afraid of retaliation and/or too wary of police to report crimes. Here is an excerpt from the book:
The "stop snitching" phenomenon turns out to be complex, deep-seated, and long-standing. It did not begin with a DVD or a rap song, nor will it end when ["stop snitching"] t-shirts go out of style. It is simultaneously a criminal code of the street, a reflection of widespread communal distrust of police, as well as, more recently, a tool of intimidation against civilian witnesses. While the phenomenon was born in the penal system, it has spread beyond its criminal roots, a product of the multifaceted challenges of urban crime, gang violence, race, drugs, and policing through criminal informants.

To explain "stop snitching" is not to condone it--the world would be a better place if Chicago residents had the kind of relationship with police that would promote cooperation and information-sharing. But it is also important to give Chicagoans more credit--like so many people in cities such as Baltimore or Newark or Los Angeles, their reluctance to call police often stems from very real personal as well as historical experiences.

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September 21, 2009

Movie Review--The Informant

In 1992, Mark Whitacre was vice president of operations at agribusiness giant Archer Daniels Midland, handling hundreds of millions of dollars worth of contracts and overseeing the production of lysine, a key corn-based ingredient in animal feed. At the same time, for nearly three years Whitacre worked with the FBI to obtain evidence implicating ADM in a massive international price-fixing scheme. As do most informants, however, Whitacre had issues. He was factually unreliable, personally unstable, and--without giving away the story--engaged in a few shenanigans of his own. The New York Times calls the movie "a smart, cynical comedy" about greed and corporate malfeasance, and it certainly is. But the story of how the federal government came to believe, rely on, adore, distrust, despise, and ultimately discard Whitacre as an informant is also a whirlwind tour through many of the benefits and dangers of real-life informant use.

The Informant, starring Matt Damon, opened this weekend and it is based on Kurt Eichenwald's best-selling non-fiction book of the same name published in 2000. The book, which weighs in at a whopping 550 pages, is an exhaustively detailed journalistic expose of the seemingly incredible facts of Whitacre's cooperation with the FBI. While the movie is a comedy, with plenty of chuckles at the topsy-turvy quality of Whitacre's personality and the resulting ups and downs of the ADM investigation, the book is more disturbing than funny. It offers an up-close view of how heavily the government depended on Whitacre, its inability to control or adjust to his deviations, how ADM's money and political influence shaped the legal outcomes of the investigation, and how justice got deeply twisted along the way. As a factual matter, the film tracks the book relatively closely, and so while people may leave the movie theater shaking their heads over the craziness of it all, they would do well to take the underlying revelations of the film seriously. The Informant points to some very non-fictional truths about the productive yet dangerous marriage of convenience between the government and its informants. Here are a few take-aways:

Cracking Big Cases. If nothing else, The Informant makes abundantly clear why law enforcement goes through the trouble of cultivating informants: they are often the only way to crack big cases against politically powerful or otherwise hard-to-penetrate organizations such as corrupt corporations, drug rings, or terrorist groups. The FBI's storied history with its mafia informants is a case in point. On the one hand, informants with names like "Sammy the Bull" Gravano enabled the investigation and prosecution of some of the most powerful mafia figures in history--including John Gotti--and over the years helped the government undermine the power of the mob. On the other hand, the FBI's habit of letting its informants commit serious crimes like murder, racketeering, and money laundering has given snitching a bad name, and subjected the FBI to heightened scrutiny, congressional disapproval, and millions of dollars in civil liability.

Unreliable. At the end of the movie's preview, Mark Whitacre casually informs his lawyers (and by implication the audience) that "I haven't been telling you guys the whole truth." This might be the biggest understatement of the movie, and it reflects the more general truth that informants are deeply unreliable sources of information. For example, the Center for Wrongful Convictions at Northwestern University Law School reports that 45.9 percent of documented wrongful capital convictions have been traced to false informant testimony, making "snitches the leading cause of wrongful convictions in U.S. capital cases." Several states, including California, New York, Texas, and Illinois, have considered or implemented new laws to restrict the use of unreliable informant witnesses.

"Falling in Love with Your Rat." This is how one federal prosecutor in New York describes the fact that law enforcement officials can become so dependent on their informant sources that they develop personal attachments to them and lose their objectivity. This attachment can impede the government's evaluation the real usefulness or reliability of their long-term sources. Mark Whitacre's FBI handlers, for example, grew so fond of him that they carried around photos of him and his family--a fondness that eventually blindsided them.

Vulnerable Informants. Like most informants, Mark Whitacre was also a vulnerable person. First and foremost, he was vulnerable to retribution from ADM--the company against which he cooperated. The threat of retribution and potential violence against cooperators is a widespread problem, particularly in gang-related cases. While the federal WITSEC program is well known and well funded, most states have few or no resources to protect or support witnesses who risk their security by cooperating.

Whitacre was also vulnerable in other ways which I won't disclose, but that, as the book describes in detail, made his FBI handlers very uncomfortable with the eventual resolution of the investigation. While Whitacre was hardly a typical snitch, his predicament reflects the widespread reality that informants, like the criminal justice population more generally, are often vulnerable people: young, frightened, undereducated, suffering from substance abuse or mental health problems. Their weaknesses make them more easily pressured into cooperating, and less able to make self-protective decisions, and the criminal system has almost no mechanisms to protect them. In recognition of this fact, Florida recently passed first-of-its-kind legislation entitled "Rachel's Law" (see previous post) which extends some much-needed protections to people who become informants.

In the end, The Informant is plain old good entertainment. But it also provides an accurate glimpse into the machinations of criminal justice, a drama that seems "unbelievable" even though it is all too real.

The Informant is rated R for occasional foul language.

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September 11, 2009

Judge finds prosecutorial misconduct in permitting false informant testimony

A federal judge has ordered a new trial for four drug conspiracy defendants because the government permitted its lead witness--a criminal informant who received lenience in exchange for his testimony-- to lie on the stand. Chicago Tribune story here. Prosecutors have a well-established constitutional obligation not to permit false testimony-- such conduct violates the defendant's right to due process. This case is unusual in part because it is typically very hard to prove informant falsehoods to the satisfaction of a court; the violation here occurred and was litigated during the trial. In this case, the informant Senecca Williams testified that he had witnessed the defendants packaging and discussing drugs during 2002-2003, a period during which he was actually incarcerated and could not have witnessed those things. Williams also testified that the 2002 events took place in "the Granville apartment," whereas in fact defendant Freeman did not occupy that apartment until at least a year later and one defendant, Wilbourn, was never there at all.

The government maintained throughout that Williams was being truthful and that the government stood by his testimony. In concluding that the prosecutors engaged in misconduct, U.S. District Judge Joan Lefkow wrote:

It is well established that the prosecution may not use testimony it knows to be false. . . . The court cannot accept the government's glib assertion [] 'that Williams was at most merely mistaken about the dates of the occurrences about which he testified.' For Williams's testimony was false not only because the drug-related activities involving [defendant] Wilbourn that Williams recounted as occurring in late 2002 and early 2003 could not have taken place during that time period, but also because those events could not have occurred where Williams claimed they took place--the Granville apartment in which Wilbourn was never present.

The finding of prosecutorial misconduct resulted in a new trial for all four defendants on one count of the indictment; the defendants remain convicted of numerous other charges for which they await sentencing.

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September 07, 2009

Afghan airstrike triggered by single informant

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

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

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

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August 24, 2009

No Special Treatment for Madoff Cooperator

The Wall Street Journal Law blog posts here that U.S. District Judge Richard Sullivan has refused to let cooperator Frank DiPascali out on bail, even though DiPascali has pled guilty and is helping the government unravel the Madoff scheme. The reason this is newsworthy is that everyone expects courts to treat cooperators well, even when they've committed major crimes (DiPascali's crimes include helping Madoff, lying under oath to SEC investigators, and forging documents--he faces 125 years in prison). In other words, Judge Sullivan is the exception that illustrates the rule. It is more typical for prosecutors and courts to quietly accommodate cooperators--keeping them out on bail, dropping charges, and even helping them with criminal cases in other jurisdictions. In my view, and as I argue in my book, these commonplace accommodations and the culture of cooperation more generally have skewed the criminal system's approach to culpability. Offenders are evaluated as much for their usefulness as their wrongdoing, and even the most heinous crimes have become opportunities for negotiation. For a haunting example, read this story in the Washington Times entitled Drug Dealer Avoids Jail in Daughter's Killing, about a drug informant who avoided punishment for the death of his daughter who died of, among other things, a fractured skull and severe malnurishment.

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August 19, 2009

Police Internally Split on Confidentiality Issue

Thanks to Scott Henson from Grits For Breakfast for passing along this important story on a battle raging within the St. Louis police department. Rank-and-file police are refusing to provide information about their snitches to their own police supervisors and city police officials. Here's an excerpt:

Worried about liars in their ranks, city police officials are demanding that up to 20 officers tell bosses details about their confidential informers. But the St. Louis Police Officers Association has won a temporary restraining order to block the inquiry, pending a hearing in court next week. The organization says the probe would jeopardize informers' lives, officers' careers and public safety. At issue is whether officers have attributed fabricated information to confidential informers to obtain search and arrest warrants. Police brass acknowledge in court filings that they believe "one or more" officers "have included false information in affidavits" for warrants, and say the investigation is aimed at stopping "the concerns of police abuse and violation of civil rights."

Ironically, one of the officers' arguments against holding a public hearing is that if informants are called to testify, they will lie. These being the very same informants that police rely on to get the warrants in the first place.

The fact that street cops are at odds with their own police officials on this question reveals some deep dynamics about snitching, including what I call the culture of secrecy surrounding the entire practice. Police and their informants are heavily dependent on one another--police need information while offenders need protection against punishment. Police will often go a long way to protect their sources, famously from defendants and courts, but often from prosecutors and even sometimes from their own police supervisors. This does not mean that police handlers are necessarily corrupt: handling criminal informants inherently means doing unsavory things like ignoring their crimes, bending the rules, sometimes providing addicts with cash for drugs. However, the culture of secrecy makes illegal police conduct that much easier. See this NYT story on Brooklyn police who supplied their informants with drugs. Kudos to the St. Louis police officials who are trying to make the process more accountable and transparent.

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August 18, 2009

Troy Davis Gets a Hearing--Recantation Redux

I posted the other day about how hard it is for defendants to get new trials when the witnesses against them have recanted. Yesterday, the Supreme Court took the unusual step of granting death row inmate Troy Davis a new hearing. Of the nine witnesses who testified that Davis shot and killed Officer Mark MacPhail in 1989, seven have recanted. Of the remaining two witnesses, one--Red Coles--is suspected of being the actual shooter. Here's the NYT story .

While the Davis case is not ostensibly about snitching, it revolves around some classic dynamics associated with informant use and its unreliability. One recanting witness--Kevin McQueen--was in fact a jailhouse snitch who testified that Davis confessed to him. McQueen had worked several times before as a police informant and knew the value of providing information against other inmates. When Queen recanted, he explained that he had fabricated the confession based on jailhouse gossip and television reports. Here's the excerpt from the original appeals brief:

Ex-inmate Kevin McQueen testified at Davis' trial that Troy had confessed to him. McQueen had been a "snitch" in other prosecutions and his version of Troy's "confession" differed wildly from established facts (e.g. Troy was eating breakfast at the Burger King in the morning). McQueen subsequently admitted, "[t]he truth is that Troy never confessed to me or talked to me about the shooting of the police officer. I made up the confession from information I had heard on TV. and from other inmate's talk about the crimes. Troy did not tell me any of this."

This tactic of fabricating other inmates' confessions based on jailhouse talk and publicly available information was made famous by Leslie Vernon White, a Los Angeles jailhouse snitch. In 1989, White went on 60 Minutes and showed reporters how with a few phone calls from the jail he could get enough information to fabricate a confession that police and prosecutors would accept as true. The ensuing Los Angeles Grand Jury Investigation (link to the left) was a response to the White revelations.

Another important aspect of the Davis case that commonly occurs in informant cases is the "first-in-the-door" phenomenon, in which the first suspect to cooperate with police not only gets to direct attention away from himself but can fundamentally shape the official investigation. Red Coles is the man who several witnesses now identify as the real shooter. The day after the shooting, Coles and his attorney went to police and fingered Davis as the shooter--Coles became a witness against Davis at trial. As a result of Coles's cooperation, police resources were directed at Davis. This happens all the time with informants, especially in complex fraud or drug cases--the first suspects to cooperate shape the entire investigation and make it more difficult to discover the truth. Former prosecutor Steven Cohen describes what happens when the government believes a witness who cooperates early:

it is a certainty that the information obtained from the cooperator will become part of the base of information utilized to evaluate future would-be cooperators. Moreover, the information will affect future questioning of witnesses and defendants; it will alter how investigators view the significance of witnesses and particular pieces of evidence; and it may taint the way the case is perceived by the prosecutors and agents. In other words, false information skews the ongoing investigation. The false information may prove critical to issues that have far greater import than whether to accept as true the proffer of another would-be cooperator. Rather, it might impact decisions regarding charges to be filed against other defendants, it might affect decisions related to an appropriate plea for a given defendant, and it might even influence whether the government decides to seek the death penalty. (Steven M. Cohen, "What is True? Perspectives of a Former Prosecutor," 23 Cardozo L. Rev. 817, 825 (2002)).

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August 14, 2009

Informants Killing Informants

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

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

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

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

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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 11, 2009

Professional Prison Snitch Ring

I recommend this recent feature article in Reason Magazine by Radley Balko, entitled Guilty Before Proven Innocent. It tells the mind-blowing story of an innocent family in Louisiana, Ann Colomb and her three sons, who were wrongfully convicted of drug trafficking based on the testimony of numerous prison snitches. The informants were part of an information-selling network inside the federal prison, in which inmates purchased files and photographs to help them fabricate testimony which they then marketed to prosecutors in order to get sentence reductions. A bunch of inmates got hold of the Colomb file, and told prosecutors that they would testify against the family. If it werent for a few chance encounters that revealed the scam, the Colomb family would still be in federal prison.

I like this story because it highlights some classic problems with criminal informants. It also illustrates the scale of the phenomenon--and its potential for massive miscarriages of justice-- in ways that may be surprising to people unfamiliar with the daily workings of the criminal process.

Continue reading "Professional Prison Snitch Ring" »

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