October 13, 2011

MS-13 informant convicted of lying to prosecutors

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

Filed in , ,

October 05, 2010

Massachusetts Supreme Court disapproves of prosecutorial rewards to witnesses

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

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

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

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

Filed in ,

June 01, 2010

Attorney General Holder memo on prosecutorial charging decisions

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

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

Filed in ,

March 18, 2010

More on the Spokane convictions

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

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

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

Filed in , ,

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.

Filed in ,

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

2010 ABA Silver Gavel Award Honorable Mention for Books
2010 ABA Silver Gavel Award
Honorable Mention for Books

Related Links

Other Law Blogs and Websites of Interest

Legal Disclaimer

  • Content on this site is for informational purposes only. Snitching Blog does not give legal advice; nothing on this site should be construed as legal advice. Snitching Blog does not warrant the accuracy or currency of any information on this site.
  • Guest bloggers are invited in order to enhance the diversity of information and opinion available on this blog. Their opinions are their own and do not necessarily represent the views of Snitching Blog. Snitching Blog does not endorse any company, private service, or product.