Yesterday in Sivak v. Hardison, the Ninth Circuit reversed yet another death sentence based on a lying jailhouse informant and the “State’s knowing presentation of perjured inmate testimony.” See also this post regarding Maxwell v. Roe. In Sivak, the prosecution used two jailhouse informants–Duane Grierson who described himself as a “chronic liar,” and Jimmy Leytham, who falsely testified that he did not expect any rewards for his testimony. The Ninth Circuit concluded that these two unreliable witnesses provided the only direct evidence of Sivak’s personal participation in the homicide and that therefore his capital sentencing violated due process.
Two films on domestic terrorism to air on PBS this week
PBS is airing two films–one tonight (Sept. 6) and one on Sept. 13–that address issues of domestic terrorism. Tonight’s film — “Better this World” — is centrally about the role of political informants and entrapment.
Here are the official descriptions:
Better This World is the story of Bradley Crowder and David McKay, who were accused of intending to firebomb the 2008 Republican National Convention, is a dramatic tale of idealism, loyalty, crime and betrayal. The film follows the radicalization of these boyhood friends from Midland, Texas, under the tutelage of revolutionary activist Brandon Darby. The results: eight homemade bombs, multiple domestic terrorism charges and a high-stakes entrapment defense hinging on the actions of a controversial FBI informant. Better This World goes to the heart of the war on terror and its impact on civil liberties and political dissent in post-9/11 America. (90 minutes)
If a Tree Falls: A Story of the Earth Liberation Front explores two of America’s most pressing issues — environmentalism and terrorism — by lifting the veil on a radical environmental group the FBI calls America’s “number one domestic terrorism threat.” Daniel McGowan, a former member of the Earth Liberation Front, faces life in prison for two multimillion-dollar arsons against Oregon timber companies. What turned this working-class kid from Queens into an eco-warrior? Marshall Curry (Oscar®-nominated Street Fight, POV 2005) provides a nuanced and provocative account that is part coming-of-age story, part cautionary tale and part cops-and-robbers thriller. A co-production of ITVS. Winner of Best Documentary Editing Award, 2011 Sundance Film Festival. (90 minutes)
Report: Confidential Informants in New Jersey
It’s rare to get this much data about informant practices. The New Jersey ACLU has released this important study of confidential informant practices across the state, based on scores of documents, cases, interviews, and government policies. According to the study,
The use of informants in drug law enforcement in New Jersey was found to be largely informal, undocumented, and unsupervised, and therefore vulnerable to error and corruption.
Among many findings, the study determined that informant use led to the following problems: manufactured criminal conduct, financial abuse, police coersion, harm to the informants, unreliability, misuse of juveniles, using “big fish” to catch “little fish,” and the widespread violation of laws and guidelines. The study proposes reforms, and apparently a number of New Jersey counties have already responded with improved policies.
California passes jailhouse informant corroboration law
Governor Brown just signed important new legislation requiring corroboration before a jailhouse informant can testify. SF Chronicle story here: Law requires corroboration of cellmate’s testimony. California joins Texas, Illinois, Massachusetts, Idaho, and several other states that require safeguards to counteract the well-documented unreliability of jailhouse snitch testimony. Here is part of the bill:
A jury or judge may not convict a defendant, find a special circumstance true, or use a fact in aggravation based on the uncorroborated testimony of an in-custody informant.
An “in custody informant” is defined as: “a person, other than a codefendant, percipient witness, accomplice, or coconspirator, whose testimony is based on statements allegedly made by the defendant while both the defendant and the informant were held in within a city or county jail, state penal institution, or correctional institution.” Full disclosure: I testified in support of this legislation.
Omaha murder trial sheds light on FBI criminal informants
One informant, Jorge Palacios, was a gang member suspected in a Los Angeles murder, and accused, although never charged, in the rape of a 13-year-old girl. The FBI paid him more than $300,000 over five years to help with drug investigations. The other informant, Cesar Sanchez, was caught dealing drugs. In exchange for allowing his auto shop to be used as the site of drug deals for the FBI to monitor, he earned between $50,000 and $100,000 and avoided deportation. This glimpse of the kinds of deals that the government strikes with criminal informants was on display in Omaha last week in the murder trial of Robert Nave, accused of killing Sanchez. The story, FBI tells of informant shooting, also reveals how law enforcement can be reluctant to probe the criminal behavior of their informants:
FBI agent Greg Beninato, who was Palacios’ handler in Omaha, testified that the FBI knew that Palacios was the suspected driver and accomplice in the 2004 drive-by shooting of a rival gang member in Los Angeles, a charge for which he was recently arrested. Beninato also acknowledged that agents had heard accusations that Palacios may have been involved in the sexual assault of a 13-year-old girl, though no charges were brought. At one point, Riley [the defense attorney] asked Beninato whether he questioned Palacios about the two cases in order to decide whether to continue using him as an informant. “No,” Beninato said.
“Why not?” Riley asked.
“It’s a fine line between getting involved in someone else’s investigation,” Beninato said. “I wasn’t going to question him without the (investigating agencies’) permission or their request to do so.”