More civil cases in which families have sued police for harm to their children who were working as informants. The cases are collected in this blog post from Professor Jeff Welty, Professor of Public Law & Government at the University of North Carolina; the post also includes several North Carolina police department policies on using children as informants. For more on the topic, see these previous posts.
10th Circuit case could shake the foundations of snitching
In Mendenhall v. Denver, the plaintiff is making an argument about search warrants that could completely change the informant landscape. Police got a warrant to search Michael Mendenhall’s house based on hearsay, which is to say, by repeating something that somebody else said. Mendenhall is represented by the Institute for Justice, and his attorneys are arguing that the warrant violated the plain text of the Fourth Amendment which requires that all warrants be “supported by oath or affirmation.” Since the officer swearing out the warrant had no firsthand knowledge, the argument goes, he could not properly swear to the facts in his affidavit. For this argument to prevail, the Supreme Court would have to overturn Jones v. United States, 362 U.S. 257 (1960), which permitted the issuance of a warrant based on hearsay allegations from an informant. If Mendenhall prevails, police could no longer rely on assertions from confidential informants in order to get warrants. Since the majority of warrants, and the vast majority of drug warrants, rely on informants, this would be a massive change in the law.
Here is a Reason Magazine piece on the case; amicus briefs from law professors and civil rights attorneys can be found on the IFJ page. And here is a law review article by Professor Laurent Sacharoff that explains the historical argument: “The Broken Fourth Amendment Oath,” 74 Stanford Law Review 603 (2022).
Refusing to snitch
The Marshall Project has published this remarkable story about George Hall who refused to serve as a jailhouse informant against David Wood. David Wood is on death row and is scheduled to be executed next month in Texas.
Hall, Wood, and two other men were all incarcerated together back in 1990. According to Hall, Hall and the two other men were offered deals by Texas law enforcement to testify falsely against Wood. Hall refused; the other men agreed and helped convict Wood. From the story:
“As Hall tells it, several El Paso detectives took the three men, without handcuffs, to a hamburger joint and a police station, seating them in a room with photographs of the victims, a large coffee pot, cigarettes and snacks. They handed the men case files with crime scene photos and interview notes with other witnesses, Hall said. “David Wood is our suspect,” he recalls the detectives saying. “It’d be best if you tell us something, because we can’t let this guy walk.” Plus, there was reward money for people who helped them.”
Stories like Hall’s are rare for a number of reasons. The government only rewards inculpatory evidence — evidence that builds the state’s cases and makes defendants look guilty — not evidence that might help exonerate a defendant. Conversely, defendants can’t offer leniency at all, and offering money or a reward looks like witness tampering. Which means that all the incentives run in one direction, towards snitching for the prosecution and away from contradicting the government’s story. When someone like Hall refuses to snitch, moreover, they will not be called as a witness by the government, which means the defense might never learn about them. And coming forward like Hall did can be risky for people facing their own criminal cases: they run the risk of law enforcement disfavor or even retaliation. (This reality sits in considerable tension with the Second Circuit’s holding that prisoners have a First Amendment right against being forced to act as an informant.)
For all these kinds of reasons, when people refuse to snitch, we are unlikely to learn about it, which makes this particular story even more revealing. Story here: He Refused to Become a Jailhouse Snitch. Can He Stop David Wood’s Execution?
Mass. Supreme Court orders comprehensive jury instructions for all jailhouse informants
The Supreme Judicial Court (SJC) issued an opinion today requiring that juries be given comprehensive, detailed, cautionary instructions whenever the government calls an incarcerated informant as a witness, regardless of whether the informant is testifying pursuant to a cooperation deal. The Massachusetts high court also affirmed the general admissibility of defense expert testimony at trial “discussing the research regarding the unreliability of incarcerated informant testimony.” The SJC is following in the footsteps of Connecticut which has long required special cautionary jury instructions regarding informant testimony, and whose Supreme Court decided in State v. Leniart (2020) that defense expert testimony regarding informants is admissible. Here is a link to the SJC decision Commonwealth v. Lacrosse. Some excerpts from the SJC opinion:
We begin by acknowledging that the defendant raises legitimate concerns about the reliability of the testimony of incarcerated informants. . . . [W]e are persuaded that a more comprehensive and specific instruction directed at all incarcerated informant testimony, regardless of whether the incarcerated informant is testifying pursuant to a cooperation agreement, would be beneficial in future cases. . . .
Indeed, we have [] modified the Connecticut instruction to direct juries to consider how incarcerated informants may have accessed the information apart from a confession by the defendant, such as through access to the defendant’s discovery materials or media accounts of the crime.
Defense counsel may also, of course, present expert witness testimony discussing the research regarding the unreliability of incarcerated informant testimony so long as the requirements of Daubert-Lanigan are satisfied for such testimony. See State v. Leniart, 333 Conn. 88, 144 (2019) (expert testimony on “the general characteristics of the marketplace for criminal informant testimony and the academic research indicating that unreliable informant testimony contributes to many wrongful convictions” admissible so long as it satisfies other requirements for expert testimony).
For a more detailed explanation of why juries need expert help assessing jailhouse informants, see this explainer in The Appeal.
FBI informant ran enormous multinational scam while under FBI supervision
From Bloomberg News, an extensive investigation into the FBI’s risky reliance on an informant who one former FBI agent called “the Don Corleone of cybercrime.” According to the report, Gery Shalon was “charged with 33 federal counts, including hacking, securities fraud and money laundering, [and] he faced decades in a federal prison. Instead, he spent just 10 months in a New York jail.” Shalon cooperated with the FBI for over five years, working and traveling under agency supervision. But “according to police and prosecutors in Europe [] [t]hey have evidence that during his time as a US cooperator, Shalon continued to run a substantial criminal operation targeting tens of thousands of European victims.” From the story:
[T]he running of [Gery] Shalon, one of the most significant cyber cooperators in American history, now has the potential to turn into a debacle for both the FBI and New York’s Southern District, the most powerful US attorney’s office in the country.
The details of the case add fresh fuel to concerns about the way the American system of justice commodifies guilt, exchanging criminal punishment for aid with higher investigative priorities. And thousands of European victims will have questions of their own, about how a mastermind of their woes operated so freely on the US government’s watch.
Story here: “The FBI’s Star Cooperator May Have Been Running New Scams All Along.“