Snitching

Criminal Informant Law, Policy, and Research

Alexandra Natapoff

Refusing to snitch

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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

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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

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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.“

Los Angeles sheriffs hid FBI informant from the FBI

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Back in 2011, the FBI was investigating misconduct, abuse, and corruption in the Los Angeles County Sheriff’s Department headed by Sheriff Lee Baca and Under-Sheriff Paul Tanaka. During a medical transport, sheriffs discovered that one of the people in custody in the LA County jail, Anthony Brown, was acting as an FBI informant and reporting information about sheriff misconduct including the use of excessive force and bribery. In response, Tanaka oversaw a plan to hide Brown from the FBI. From the Los Angeles Magazine series on the scandal:

[In August, 2011], LASD management set into motion its most elaborate strategy: They would hide Brown from his FBI contacts, members of the U.S. Attorney’s office, and any other federal personnel who might try to find him until the inmate revealed to the LASD what he’d been telling the feds. Brown would be bounced into and out of various locations within the county jail system as LASD deputies used a byzantine stratagem of rebooking him every 48 hours under a new name, inmate number, and physical descriptors to game the system’s computer database so as to leave no digital bread crumbs. Finally, as part of their effort to get the inmate to disclose everything he knew, [the] team told Brown that he would not hear from the FBI again, that his handlers had abandoned him.

Baca and Tanaka were both eventually convicted of felony obstruction of justice in connection with the scandal. Brown received a $1 million settlement from the county for his civil rights lawsuit for abuse and failure to provide medical care.

U.S. Supreme Court decides case on expert admissibility

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The Supreme Court decided a case on Thursday that is not about informants but that could have implications down the road for informant expert testimony. In Diaz v. United States (June 20, 2024), the Court held that a federal agent could testify as an expert that “most drug couriers” know they are transporting drugs. The defendant, Delilah Guadalupe Diaz, claimed that she did not know that drugs were in the car that she was driving. The Court reasoned that the agent was not testifying explicitly about what Diaz knew or did not know — that would have been prohibited by the Federal Rules of Evidence, Rule 704(b)— but only what “most people” in that group know. The majority rejected the dissent’s argument that the expert “functionally” stated an opinion about Diaz’s state of mind, because “[t]hat argument mistakenly con­flates an opinion about most couriers with one about all cou­riers.”  Rather, the Court held that “an expert’s conclusion that most people in a group have a particular mental state” is not an opinion about a particular individual in that group.

Diaz potentially enhances the admissibility of defense expertise regarding informants, specifically about whether informants know that they will receive benefits in exchange for the information they provide. As I and many other scholars have pointed out, most informants know that they will be rewarded for incriminating other people, even if the government has not expressly or formally promised them anything up front.  Nevertheless, the government often maintains that informants come forward for no reward, and informants will often tell the jury that they do not expect any reward.  In a similar vein, prosecutors often reassure juries that informants are reliable because lying informants will fear prosecution for perjury, but most informants (as well as lawyers and judges) know that such prosecutions are extremely rare. Expert testimony on what “most informants know” could thus be helpful to juries in deciding whether informants should be believed.

Courts are typically more willing to allow government experts than defense experts in criminal cases.  Indeed, the National Academies of Sciences issued a report in 2009 worrying that “trial judges rarely exclude or restrict expert testimony offered by prosecutors.” But Diaz cuts both ways. In her concurrence, Justice Ketanji Brown Jackson emphasizes that the decision is “party agnostic” and that “[b]oth the Government and the defense are permitted [] to elicit expert testimony ‘on the likelihood’ that a defendant had a particular mental state.”

Here is a link to an explainer about informant expert testimony that I wrote for The Appeal.  And here is a link to my colleague Professor Noah Feldman’s op-ed arguing more generally that Diaz was wrongly decided, and that it impermissibly waters down the prosecution’s obligation to prove its case beyond a reasonable doubt “because [the decision] invites the jury to conflate abstract statistical probabilities with the specific circumstances of the individual case.”