Snitching

Criminal Informant Law, Policy, and Research

Alexandra Natapoff

Orange County violated the Constitution with its secret informant program

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The U.S. Department of Justice has released the results of its six-year investigation into Orange County, California, confirming that the Sheriff’s Department and the Office of the District Attorney routinely violated the Sixth Amendment and the Due Process rights of people in the county jail through law enforcement creation, reward, and use of informants. Story from The Appeal here: DOJ Finds Orange County Sheriff, DA Violated Civil Rights Using Illegal Jailhouse Informants. And on what kinds of enforcement actions might follow, see this from the Orange County Register which documented the scandal for years: Courts likely will be needed to force OC to fix illegal use of jailhouse informants.

The Orange County snitch scandal has provided the public with a rare window into the workings of the informant market. Orange County officials rewarded gang informants with money and other benefits, in exchange for which those informants unconstitutionally gathered information about other defendants. County officials lied for years about the program to defense attorneys and in court. Numerous convictions have been overturned as a result. For more, see these prior posts.

Assessing terrorism informants 20 years after 9/11

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NYTimes story covering the prosecution of an alleged terrorist who was set up by a paid government informant: The ‘Herald Square Bomber’ Who Wasn’t. Nearly 50 percent of international terrorism cases have involved informants, in a process that has drawn criticism for decades. From the article:

“In [terrorism] trials, the government presented evidence gathered by paid civilian informants who latched onto low-income, vulnerable and mentally challenged individuals, urged them toward a plot and, in several cases, even offered money and supplies to carry out bombings.”

See here for previous posts on terror-related informant policies.

Gerald Shur, Architect of Witness Protection Program, Dies at 86

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Gerald Shur was a DOJ lawyer who started the federal witness security program (WITSEC) in 1970. The program elevated the use of high-profile informants and is widely credited with helping bring down the mafia. Shur co-authored a 2002 book “WITSEC: Inside the Federal Witness Protection Program” with the journalist Pete Earley. From the obituary in the New York Times:

“Mr. Shur had standards governing which witnesses got into the program: They had to have real evidence against someone of importance, and they had to be in real jeopardy if they agreed to provide it. ‘I guarantee you,’ Mr. Shur said in the 2007 interview, ‘that the kind of people we accept are ones where if the guy testified on Monday morning and didn’t get protection he would be dead Monday afternoon.’ The program has drawn its share of complaints, especially early on, when the number of participants grew quickly. Some of those given new identities complained of inadequate support or security in their new lives, or of trouble with paperwork. And sometimes, since many protected witnesses were lifelong criminals, they returned to their former lives.”

FBI using informants to surveil Black Lives Matter activists

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This piece in the Intercept reviews official documents showing, among other things, how the FBI used informants to surveil Black Lives Matter activists after Ferguson and beyond: FBI Tracked an Activist Involved With Black Lives Matter as They Traveled Across the U.S., Documents Show. Michael German, former FBI agent and now a national security expert at the Brennan Center, described it as “clearly just tracking First Amendment activity.”

The FBI’s history of using informants to surveil political activity, especially Black activists, stretches back decades. Historian Elizabeth Hinton wrote about it today in the Atlantic. Professor Gary Marx wrote a seminal book about it years ago titled Undercover: Police Surveillance in America. More recently we have seen similar FBI tactics deployed against Muslim communities.

New Jersey AG issues jailhouse informant directive

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The New Jersey Attorney General issued Directive 2020-11 which requires all state prosecutors to seek supervisory approval before using jailhouse informants. That approval process requires, among other things, the collection of comprehensive information regarding the proposed informant witness. Supervisors must satisfy themselves that prosecutors have met their discovery obligations, and that “there is independent, credible evidence corroborating the informant’s testimony.”