During appellate argument, a Ninth Circuit panel of federal judges lambasted the California Attorney General’s office for failing to discipline a prosecutor who lied about rewarding a jailhouse snitch. Los Angeles Times story and video of argument (beginning at 16:00 minutes) here. The panel, which included Judges Kozinski, Wardlaw and Fletcher, instructed the government attorney to go back to his office and tell the Attorney General to act on the matter.
U.S. DOJ criticizes DEA informant program
The Office of the Inspector General (OIG) of the U.S. Department of Justice has just released this report, Audit of the Drug Enforcement Administration’s Confidential Source Policies and Oversight of Higher-Risk Confidential Sources.
This is an important report for a number of reasons. The press and the public have had trouble getting basic information from the DEA about its informant policies and usage: this audit fills in some of those informational gaps. The audit identifies numerous troubling practices within the DEA and offers new insights into the kinds of risks that are routinely run by federal officials who rely on criminal informants. The audit also strengthens the case for a pending bill in Congress entitled “The Confidential Informant Accountability Act,” H.R. 2985, introduced by Rep. Stephen Lynch (D-MA). That bill would require the DEA, along with the FBI and other federal investigative agencies, to report to Congress the serious crimes committed by their informants, as well as their payments and rewards. As described in greater detail below, the OIG found that the DEA was seriously deficient in documenting and controlling the crimes committed by its informants.
Highlights of the Report:
1. The DEA resisted the audit. As the report put it, “the DEA has seriously impeded the OIG’s audit process, which has affected our ability to conduct a timely, full, and effective review of the DEA’s Confidential Source Program. The DEA made attempts to prohibit the OIG’s observation of confidential source file reviews and delayed, for months at a time, the provision of confidential source information and documentation.” The audit is therefore ongoing. This resistance to oversight is consistent with the general culture of secrecy surrounding informant use, in which law enforcement is often resistant to disclosing its practices, even to its own direct supervisors. See, for example, this post.
2. The DEA permits its informants to deal drugs and commit other crimes without adequate supervision or oversight. The U.S. DOJ has guidelines for its investigative agencies that require certain procedures before an informant can be authorized to commit a crime. The DOJ Guidelines, which are here, distinguish between Tier One and Tier Two Otherwise Illegal Activity (OIA). Tier One OIA includes very serious offenses and requires authorization from agency supervisors and a prosecutor.
The DEA does not follow these guidelines. For example, the DEA explicitly excludes “the purchase of drugs or other undercover activities that are routinely performed by DEA Agents and CSs [confidential sources] during the normal course of their duties” from the kinds of “sensitive activities” that require supervisory approval within the DEA. The only drug transactions for which the DEA rules require a prosecutor’s approval are those involving amounts under U.S. Sentencing Guidelines 2D1.1(c)(1), which are the highest amounts documented in the guidelines, and include 90 KG or more of heroin, 450 KG or more of cocaine; 25.2 KG or more of cocaine base (crack); 90 KG or more of PCP; and 45 KG or more of Methamphetamine. Amounts less than this do not require prosecutorial approval. The report concludes:
“We believe the DEA’s policies do not adequately address the concerns and risks involved in authorizing confidential sources to conduct and participate in OIA and do not correspond to the AG Guidelines’ requirements in place to mitigate these risks….DEA confidential sources could engage in illegal activity that has not been adequately considered, or become involved in additional illegal activities beyond those that have been considered with the mistaken belief that they are doing so with the authorization of the DEA. Further, an ill-considered or unclear decision to authorize a confidential source to engage in OIA may create significant difficulties in prosecuting the source or co-conspirators on charges related to the source’s activities.”
3. The DEA rarely reviews the relationships between its agents and their long-term informants (over six years), and when they do, the review is cursory. This is historically and famously problematic: the DOJ Guidelines were themselves a direct response to the FBI’s disastrous long-term relationships with its mafia informants.
4. The DEA pays some of its informants death and disability benefits when they are injured or killed in connection with their informant activities.
Orange County jailhouse informant scandal goes national
National attention is finally turning to the Orange County fiasco. The judge has kicked the entire District Attorney’s Office off the case, largely because so many prosecutors and sheriffs lied under oath to protect their secret records and unconstitutional practices. Dean Erwin Chemerinsky has called for an independent inquiry and major reforms; Al Jazeera has revealed secret recordings of the informant’s negotiation with sheriffs; Slate’s Dahlia Lithwick says the scandal “shows eerie parallels” to other jailhouse informant debacles. Speaking to Slate, Laura Fernandez at Yale Law School concludes that the “massive cover up by both law enforcement and prosecutors…has effectively turned the criminal justice system on its head.”
Hopefully all this attention will finally persuade lawmakers that jailhouse informants are a public policy worth regulating properly at the front end, instead of waiting for some intrepid defense attorney or journalist to uncover a disaster. For jurisdictions that have recently concluded as much, see this post.
Informant contradicts Tampa police account of SWAT killing
The Tampa Bay Times reports that a criminal informant has come forward to dispute the police’s account of a SWAT team killing. In Confidential informer blows whistle in fatal Tampa SWAT raid, the Times describes the informant Ronnie Coogle as a 50-year-old addict and long-time offender who often worked as a police informant. Coogle says that police misrepresented the information he gave them, as that as a result police unnecessarily killed “Jason Westcott, a young man with no criminal convictions whom a SWAT team killed during a drug raid that found just $2 worth of marijuana.” As the Times describes it, it’s impossible to know what the truth really is, both because of Coogle’s own admitted record of lying to police, and the police’s failure to monitor or keep records about Coogle and the case:
“Coogle is nobody’s idea of a righteous whistle-blower. The only constant in his story is his own dishonesty; even when he confesses to lying you don’t know if he’s telling the truth. Much of what he says can be neither proved nor disproved, in large part because of the Police Department’s minimal supervision of his work. But Coogle’s allegations against the cops who paid him, and even his own admissions of double-dealing, aren’t necessarily what’s most disturbing about his account. Most unsettling of all might be what nobody disputes — that police officers were willing to trust somebody like him in the first place.”
Another informant who turned on his handlers in this way was Alex White, the Atlanta informant who blew the lid off the police killing of 92-year-old Kathryn Johnston and triggered a federal investigation into Atlanta police practices. See the New York Times Magazine feature here.
Ex-traffickers rewarded for “El Chapo” indictment
In a dynamic reminiscent of the FBI’s use of mafia informants, two major drug traffickers were given drastically reduced sentences in exchange for their cooperation against the Mexican Sinaloa cartel. The two men reportedly smuggled $1.8 billion worth of drugs into Mexico and were facing life sentences; they have been cooperating with the U.S. government for six years. From the Huffington Post:
“[A] federal prosecutor [] poured praise on Pedro and Margarito Flores, portraying them as among the most valuable traffickers-turned-informants in U.S. history and describing the courage they displayed in gathering evidence against Joaquin “El Chapo” Guzman and other leaders in Mexico’s Sinaloa cartel. With credit for time served awaiting sentencing and for good behavior in prison, the brothers, now 33, could be out in as little as six years.”