Snitching

Criminal Informant Law, Policy, and Research

Alexandra Natapoff

Threats against cooperators and calls for secrecy

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Earlier this year, the Federal Judicial Center released a report assessing threats against federal defendants who cooperate: Survey of Harm to Cooperators.  A survey of federal judges, prosecutors, defense counsel, and probation officers showed that the majority of these legal officials were aware of threats to or harms against cooperating defendants in one or more cases.  The survey identified hundreds of cases in which cooperators or witnesses were threatened or harmed.

The Marshall Project reported on this issue today in an article entitled “Is the Internet endangering criminal informants? A judicial committee proposes more secrecy.”  A committee of the Judicial Conference has called for more secrecy regarding cooperator status, including proposals to routinely seal records or create special “sealed supplements” to every case.  But there are several problems with this approach.  As the Marshall Project put it:

“Many defense attorneys and free speech advocates say that the proposed new rules are troublesome (and perhaps unlawful) for at least two reasons. First, they say, creating a sealed annex in every case could deprive the public, and the media, of basic information that goes beyond the issue of cooperation. Second, several defense attorney told me this week the proposed new rules could have the perverse effect of making life even more dangerous for informants; the existence of sealed supplement would mean every inmate was presumed to be a “snitch” unless proven otherwise. And such proof would be hard to come by with the information sealed.” 

Informant expert testimony held admissible in Connecticut

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The Connecticut Appellate Court has held that expert testimony on the general unreliability of jailhouse informants is admissible, and that a trial court abused its discretion when it excluded a defense expert (me) in a trial in which the conviction depended on several jailhouse informants.  The opinion is here: State v. Leniart.  The discussion of the expert issue is in Part IV, beginning on page 42.

The opinion contains several key findings:

1. The Court “acknowledged the growing recognition by the legal community that jailhouse informant testimony is inherently unreliable and is a major contributor to wrongful convictions throughout this country.” (p. 43, quoting State v. Arroyo)

2. “Although credibility determinations ultimately must be left to the jury, expert testimony nevertheless is admissible if it can provide a jury with generalized information or behavioral observations that are outside the knowledge of an average juror and that would assist it in assessing a particular witness’ credibility. As long as the expert does not directly opine about a particular witness’ credibility or [] testify in such a way as to vouch indirectly for or bolster the credibility of a witness, the expert’s testimony would not invade the province of the jury to decide credibility and may be admitted.” (p.49)

3. An understanding of jailhouse informant culture, including the expectation of benefits and the lengths to which informants may go to procure and fabricate evidence, is not within the ken and understanding of the average juror (p. 50).

4. Expert informant testimony is similar to expert testimony regarding the unreliability of eyewitness testimony which is now widely viewed as admissible (p.51-52).

5. Generalized jury instructions may be insufficient to educate jurors regarding the dangers of informant unreliability,  since in eyewitness cases “generalized jury instructions were not an adequate substitute for expert testimony” (p. 52).

Interview with Rachel Hoffman’s mother Margie Weiss

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Rachel Hoffman was a young informant who was killed in 2008.  Her parents’ activism and lobbying led to the passage of Rachel’s Law in Florida, which created new, more thoughtful police guidelines for handling informants.  Rachel’s mother, Margie Weiss, has remained a vocal activist and educator on the issue of informant reform. As she put it, “[s]cared kids get talked into assisting the police department or some law enforcement agency for some smaller crime, and then gets sent into a much larger, much more dangerous situation. Initially my daughter was arrested for having less than an ounce of pot…and she received a death sentence.” Here is the interview with her: How One Mother Turned Tragedy Into Triumph: The Rachel Morningstar Hoffman Story. 

Orange County prosecutors in scandal seeking judgeships

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The Marshall Project is reporting that two prosecutors directly implicated in Orange County’s jailhouse snitch scandal are running for judicial office.  From the story, ‘The Scandal-Singed DAs Who Wants to be Judges‘:

   For the past year, the district attorney’s office in Orange County, Calif., has been battling the fallout from revelations of a decades-old scheme of planting secret informants near defendants’ jail cells…Now two longtime prosecutors from that same office — Michael Murray and Larry Yellin — are running for Superior Court judgeships, aiming to take the bench alongside judges who have called them out for misconduct. Neither prosecutor has been formally sanctioned in the scandal. But both are supervisory-level district attorneys in an office that a judge recently ruled “habitually ignored the law over an extended period of time.” Both, by their own admission, have withheld evidence. And both are considered shoo-ins by the local press. 

Following a terrorism informant in real time

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In this Sundance award-winning documentary, (T)error, filmmakers Lyric Cabral and David Felix Sutcliffe follow a local professional informant as he collects information about his target for his FBI handlers.  The New York Times Magazine, which published “The Informant and the Filmmakers” today, describes the film as follows:

   “By some counts, nearly half of the 500-plus terrorism-related convictions in federal court since the Sept. 11 attacks have involved informants. Before ‘‘(T)error,’’ most of what was known of their work came from indictments and snippets of wiretapped dialogue, served up by prosecutors and neatly presented for the courtroom. Filmed without the F.B.I.’s cooperation and apparently without its knowledge, ‘‘(T)error’’ shows how an informant puts a case together from its raw ingredients.”

The article relies on Trevor Aaronson’s book “The Terror Factory: Inside the FBI’s Manufactured War on Terrorism,” which criticizes the phenomenon of terrorism informants more broadly.   Interested readers should also take a look at Wadie Said’s recent book “Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions,” which argues that the federal legal system has become distorted in response to terrorism prosecutions in general, and the use of informants in particular.  Click here for links to both books.