Snitching

Criminal Informant Law, Policy, and Research

Alexandra Natapoff

Court considers orthodox jewish rule against informing

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The Talmudic laws of mesira prohibited Jews from informing against other Jews to non-Jewish authorities. This ancient “no snitching” rule is getting modern attention in the Los Angeles case of Rabbi Moshe Zigelman, an Orthodox jew who is refusing to testify against other Jewish suspects before a grand jury regarding alleged acts of tax fraud and money laudering. Story here: Jewish law goes to court: Mesira meets American justice. The story describes the Talmudic issue this way:

The concept of mesira, which literally means “delivery,” dates back to periods when governments often were hostile to Jews and delivering a Jew to the authorities could lead to an injustice and even death. The rules of mesira still carry force within the Orthodox world, owing both to the inviolability of the concept’s talmudic origins and the insular nature of many Orthodox communities. But they are also the subject of debate over whether the prohibition applies in a modern democracy that prides itself on due process and civil rights.

This dispute dovetails with a large issue in criminal justice: what happens to the force of criminal law when people believe it is unfair or leads to injustice? Professor Tom Tyler has written extensively about the fact that people are more likely to obey the law if they perceive it to be be fair and carried out through evenhanded and respectful procedures. See, e.g., Tom Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities?, 6 Ohio St. J. of Criminal Law 231 (2008).

9th Circuit reverses death penalty because of lying informant

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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

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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)

You can view the trailers here and here.

Report: Confidential Informants in New Jersey

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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

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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.