Follow up to this post: A Rat’s Life: MS-13 Informants Run Wild. In a rare turnaround, the government has prosecuted its own informant for lying to prosecutors about murders he previously committed. Roberto Acosta now faces up to five years; he argues that he was the government’s main source for its case against MS-13 and without him they wouldn’t have been able to get the numerous convictions they did. SF Weekly blog postings here: Feds Want Maximum Prison Time for Roberto Acosta, MS-13 Informant Who Lied and Roberto Acosta, MS-13 Informant Convicted of Lying, Wants Out of Jail
9th Circuit clarifies DEA disclosure obligations under FOIA
The Freedom of Information Act (FOIA) empowers individual requestors to compel the government to disclose its records. Various exceptions permit the government to withhold certain records regarding informants, but the Ninth Circuit recently explained some limits to those exceptions. In Pickard v. Dep’t of Justice, 2011 WL 3134505 (9th Cir., July 27, 2011), William Pickard filed a FOIA request with the DEA to get records regarding Gordon Todd Skinner, a DEA informant. The DEA denied his request by submitting a so-called “Glomar response” in which it neither officially confirmed nor denied the existence of Skinner as an informant. The 9th Circuit held that the DEA in effect had already “officially confirmed” Skinner as a confidential informant by eliciting testimony about and from him in open court at Pickard’s trial, and that therefore the DEA could not avoid the FOIA request in that manner. In other words, once the government relies on an informant–either through an agent’s testimony at trial regarding that informant or by using the informant as a witness–it cannot subsequently block a FOIA request by refusing to acknowledge the existence of the informant. This does not mean that the DEA necessarily has to produce records regarding its informants; it does mean, however, that it has to acknowledge the existence of such records and identify the specific FOIA exceptions that might permit nondisclosure.
This is an important decision for a number of reasons. As Judge Wallace explains in his concurrence, “the specific circumstances pursuant to which an informant’s status is deemed “officially confirmed” is a matter of first impression and great importance.” This is because the threshold question of whether a person is an informant at all may be a secret. Moreover, the decision clarifies that once the government decides to use an informant or his information at trial, it relinquishes much of its claim to confidentiality under FOIA. As Judge Wallace put it:
On the one hand, prosecutors frequently must rely on informants, who possess vital information, to prosecute dangerous criminals. On the other hand, the DEA and confidential informants have a different interest in secrecy and privacy than federal prosecutors. Yet, under the majority holding, an Assistant United States Attorney can eliminate that privacy interest by asking a single question–i.e., “Did you serve as a confidential informant”–in open court.
Not “simply a thank-you”: another snitch-based exoneration in Los Angeles
After serving 17 years in prison for murder, Obie Anthony was exonerated last Friday. Anthony was represented by the Northern California Innocence Project and the Loyola Law School Project for the Innocent. The judge found that the key witness–a pimp who received leniency as a result of his testimony against Anthony–lied, and that the government failed to disclose its deal with the informant. See L.A. Times story: Judge overturns murder conviction in 1994 slaying, and press release. Although the informant was promised a lighter sentence for testifying, prosecutor Scott Collins denied there was a deal. “It was not a deal in exchange for testimony,” he said. “It was simply a thank-you for cooperating with the LAPD in a homicide investigation.” Whether we label such arrangements a “thank you,” deal, benefit, or something else, the fact remains that informants can reasonably expect to be rewarded for their testimony and are therefore incentivized to lie in ways that other witnesses are not.
Mother Jones article on FBI terrorism informants
Here is an major article–“The Informants“–from Mother Jones and the Investigative Reporting Program at the University of California-Berkeley on the FBI’s use of informants in terrorism investigations. The year-long investigation examined 508 defendants in terrorism cases and found:
Nearly half the prosecutions involved the use of informants, many of them incentivized by money (operatives can be paid as much as $100,000 per assignment) or the need to work off criminal or immigration violations.
Sting operations resulted in prosecutions against 158 defendants. Of that total, 49 defendants participated in plots led by an agent provocateur–an FBI operative instigating terrorist action.
With three exceptions, all of the high-profile domestic terror plots of the last decade were actually FBI stings.
In many sting cases, key encounters between the informant and the target were not recorded–making it hard for defendants claiming entrapment to prove their case.
Terrorism-related charges are so difficult to beat in court, even when the evidence is thin, that defendants often don’t risk a trial.
New York officers sued for failing to protect informant
The mother of a 20-year-old informant is suing two NYPD officers for failing to protect her son who was killed an hour and a half after he tipped off his handler to the location of some guns and drugs. Story here: Mom of slain informant Anthony Velez sues cops for failing to protect him. Such suits are rarely successful–courts have been reluctant to hold police accountable for the fate of their informants, even when the government contributes to the risk. See this post discussing the government’s responsibility for the safety of its informants.