Snitching

Criminal Informant Law, Policy, and Research

Alexandra Natapoff

Florida’s “Rachel’s Law” offers some protection to informants

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While using criminal informants can produce bad evidence and even sometimes more crime, the snitching phenomenon is problematic in other, more complex ways. Criminal snitches themselves are often vulnerable people–they may be young, undereducated, or suffering from substance abuse or mental disabilities. Indeed, this is true more generally for the majority of people in the criminal system. When police pressure such suspects to cooperate, many people feel as if they have no choice, even if cooperating is not in their best interests. Last year, 23-year-old Rachel Hoffman became an informant in Tallahassee, Florida, trying to avoid jailtime for her possession of a small amount of drugs. Police sent her on a sting operation during which she was killed. Her death triggered an outcry and resulted in ground breaking legislation to regularize the process by which police turn people into informants. My op-ed on the new law is published here in the Daily Journal, and it describes some of the law’s features:

It creates new, basic mechanisms to protect informants and to increase police accountability. For example, Rachel’s Law requires law enforcement agencies to establish policies and procedures, including recordkeeping rules, to guide police when they turn a suspect into an informant – essential regulations that most United States police departments lack. The law also requires police to tell suspects that police cannot make promises about what charges will be filed or dropped in exchange for cooperation – only a prosecutor can do that. Police must also consider an informant’s suitability – including their age, maturity, and risk of physical harm – before entering into an agreement. This last requirement is a nod to the fact that many experts concluded that Rachel Hoffman was unsuited to the dangerous task that police assigned her.

The bottom line is that being an informant can be a very dangerous thing. Not only may the undercover work itself pose risks, but snitching can subject people to retribution and violence from all sort of sources. More on this in later posts.

Judge finds prosecutorial misconduct in permitting false informant testimony

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A federal judge has ordered a new trial for four drug conspiracy defendants because the government permitted its lead witness–a criminal informant who received lenience in exchange for his testimony– to lie on the stand. Chicago Tribune story here. Prosecutors have a well-established constitutional obligation not to permit false testimony– such conduct violates the defendant’s right to due process. This case is unusual in part because it is typically very hard to prove informant falsehoods to the satisfaction of a court; the violation here occurred and was litigated during the trial. In this case, the informant Senecca Williams testified that he had witnessed the defendants packaging and discussing drugs during 2002-2003, a period during which he was actually incarcerated and could not have witnessed those things. Williams also testified that the 2002 events took place in “the Granville apartment,” whereas in fact defendant Freeman did not occupy that apartment until at least a year later and one defendant, Wilbourn, was never there at all.
The government maintained throughout that Williams was being truthful and that the government stood by his testimony. In concluding that the prosecutors engaged in misconduct, U.S. District Judge Joan Lefkow wrote:

It is well established that the prosecution may not use testimony it knows to be false. . . . The court cannot accept the government’s glib assertion ‘that Williams was at most merely mistaken about the dates of the occurrences about which he testified.’ For Williams’s testimony was false not only because the drug-related activities involving defendant Wilbourn that Williams recounted as occurring in late 2002 and early 2003 could not have taken place during that time period, but also because those events could not have occurred where Williams claimed they took place–the Granville apartment in which Wilbourn was never present.

The finding of prosecutorial misconduct resulted in a new trial for all four defendants on one count of the indictment; the defendants remain convicted of numerous other charges for which they await sentencing.

Afghan airstrike triggered by single informant

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The Washington Post reported yesterday that the NATO airstrike that killed numerous Afghan civilians was based on intelligence received from a single informant, in violation of command policy. According to the Post:

The decision to bomb the tankers based largely on a single human intelligence source appears to violate the spirit of a tactical directive aimed at reducing civilian casualties that was recently issued by U.S. Gen. Stanley A. McChrystal, the new commander of the NATO mission in Afghanistan. The directive states that NATO forces cannot bomb residential buildings based on a sole source of information.

The civilian equivalent to the McChrystal directive is the corroboration requirement, which comes in a variety of forms. A dozen or so states have an accomplice corroboration requirement stating that no defendant can be convicted based solely on the uncorroborated testimony of an accomplice. Texas has a relatively new and important informant corroboration requirement which prohibits the conviction of any drug defendant based solely on the testimony of a single informant. Texas promulgated its rule after the 1999 Tulia debacle, in which a single undercover narcotics agent falsely charged a large percentage of the town’s black population, many of whom were convicted without any corroborating witnesses or evidence. The California legislature has twice passed legislation that would require corroboration for jailhouse informants–Governor Schwarzenegger has vetoed it both times. And while criminal snitches have unique problems that distinguish them from military, national security, and other kinds of informants, all classes of informants share deep unreliability risks. The NATO airstrike provides yet more evidence of the value of having and honoring corroboration requirements.

New Yorker Article–Of Experts and Snitches

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In this extensive New Yorker article, reporter David Grann tells the story of how Texas prosecuted and executed Cameron Todd Willingham for the alleged arson murder of his three children. Willingham always insisted on his innocence, and recent forensic evidence indicates that the fire was in fact an accident. A Texas government commission is reviewing the case–as Grann puts it, if the commission concludes that Willingham did not set the fire, “Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the ‘execution of a legally and factually innocent person.'”

There were two controversial kinds of evidence used at Willingham’s trial. The first and most important was the state expert’s opinion that the fire was intentionally set. The second was the testimony of Johnny Webb, a jailhouse snitch with drug and mental health problems, who was hoping to “get time cut” off his robbery and forgery charges and who testified that Willingham confessed to him. Eight years after the trial, in 2000, Webb recanted his testimony, but within months he recanted again. Here are a few excerpts from the story describing Webb.

Not long after Willingham’s arrest, authorities received a message from a prison inmate named Johnny Webb, who was in the same jail as Willingham. Webb alleged that Willingham had confessed to him . . . During Willingham’s trial, another inmate planned to testify that he had overheard Webb saying to another prisoner that he was hoping to “get time cut,” but the testimony was ruled inadmissible, because it was hearsay. . . . Years later, in 2009, reporter David Grann interviewed Webb. After Grann pressed him, Webb]said, “It’s very possible I misunderstood what he Willingham said.” Since the trial, Webb has been given an additional diagnosis, bipolar disorder. “Being locked up in that little cell makes you kind of crazy,” he said. “My memory is in bits and pieces. I was on a lot of medication at the time. Everyone knew that.” He paused, then said, “The statute of limitations has run out on perjury, hasn’t it?”

This is a good example of how jailhouse informant testimony can not only create bad cases but bolster weak ones. Because of the general understanding in the criminal system that informants get a break, informants may reach out to the government to offer testimony, making bad cases look better. In other words, the culture of snitching generates evidentiary “filler,” even if the government is not actively looking for any.

The New Yorker story is centrally about the role of bad forensic expertise, and it highlights similarities between experts and informants. Both are paid and controlled by one side, both have a stake in the outcome, and both offer testimony that is difficult to cross examine or rebut. Professor George Harris wrote an article on these similiarities entitled “Testimony for Sale: The Law and Ethics of Snitches and Experts,” in Pepperdine Law Review, in which he argues that experts and snitches alike should be subject to more rigorous controls and adversarial testing. In particular, he offers a proposal, on which I expand in my book, to create “defense informants,” i.e. informants who could testify for defendants and receive the same kind of benefits that informants can now receive only by testifying for the prosecution.

New ABA opinion on prosecutorial duty to disclose information

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The American Bar Association just released an important new opinion regarding the prosecutorial ethical duty to disclose evidence and information favorable to the defense. The rule itself requires prosecutors to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” The opinion interprets this ethical mandate very broadly: it is more demanding than constitutional Brady disclosure requirements; it covers all information favorable to the defense, not just evidence; it is up to the defense, not the prosecution, to evaluate the utility of the information; the government must disclose information as soon as is reasonably practical, and the defendant cannot waive these rights or absolve the prosecutor of her disclosure duties. Here are a few key excerpts:

Rule 3.8(d) is more demanding than the constitutional case law in that it requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on a trial’s outcome. . . .The rule requires prosecutors to disclose favorable evidence so that the defense can decide on its utility.

The ethical duty of disclosure is not limited to admissible ‘evidence’ . . .; it also requires disclosure of favorable ‘information’. Though possibly inadmissible itself, favorable information may lead a defendant’s lawyer to admissible testimony or other evidence or assist him [sic] in other ways, such as in plea negotiations.

For the disclosure of information to be timely, it must be made early enough that the information can be used effectively. . . . Once known to the prosecutor, [evidence and information] must be disclosed under Rule 3.8(d) as soon as reasonably practical. . . Among the most significant purposes for which disclosure must be made under Rule 3.8(d) is to enable defense counsel to advise the defendant regarding whether to plead guilty.

Where early disclosure, or disclosure of too much information, may undermine an ongoing investigation or jeopardize a witness, as may be the case when an informant’s identity would be revealed, the prosecutor may seek a protective order.

This is an extremely important opinion for informant law and practice, for several reasons…(more after the break)

First is that a great deal of snitch litigation involves so-called Brady or Giglio claims (see this previous post), in which it is alleged that the prosecution withheld information from the defense about snitch witnesses. The ABA opinion not only reiterates the importance of prosecutorial disclosure generally, but explains that the prosecutor’s ethical obligation to hand over favorable information is broader than her constitutional obligation. In other words, even if the Constitution does not require disclosure, the prosecutor has an independent professional duty to disclose. While the violation of this duty will not invalidate a conviction, it could lead to professional discipline or firing.

Another interesting feature of the opinion is that prosecutorial supervisors must “establish procedures to ensure that the prosecutor responsible for making disclosure obtains evidence and information that must be disclosed.” This includes keeping track of information in one case that might need to be disclosed by a different prosecutor in another case. In other words, prosecutor offices must have data collection and dissemination mechanisms by which their employees can comply with their ethical obligations. This position contrasts with the recent Supreme Court decision in Van de Kamp v. Goldstein this year, in which the Court held that prosecutorial supervisors could not be sued for failing to create data collection systems to provide informant-related impeachment material to defendants. While under Van de Kamp a chief prosecutor cannot be sued for the office’s lack of disclosure procedures, under the ABA opinion she could be disciplined.

In effect, the ABA has decided that the Supreme Court’s decisions on prosecutorial disclosure are too weak, ethically speaking, and that prosecutors and their supervisors have far stronger professional obligations to disclose information to defendants, including information about government informants.

Ethical obligations are a crucial feature of the legal profession–attorneys can be disciplined, fired, or disbarred if they violate the ethical rules of their jurisdiction. Disclosure obligations are likewise central to prosecutorial integrity. Attorney General Eric Holder recently threw out the corruption case against Alaska Senator Ted Stevens because Holder concluded that DOJ lawyers violated their obligation to disclose information to the defense. NPR story here. Insofar as states and prosecutors take this new ABA directive seriously, it could be a powerful engine for increased disclosure and transparency.

On a more technical note (non-lawyers may want to tune out here), the opinion does not explicitly address a constitutional issue raised by the Supreme Court in Ruiz. The Ruiz Court distinguished between exculpatory Brady material–material that directly pertains to the defendant’s guilt or innocence–and exculpatory Giglio impeachment material–material suggesting that the state’s witness is lying. Classic Giglio includes information about informant rewards, the informant’s criminal record, prior history of cooperation or falsehoods, or anything that would impeach the informant’s credibility. The Ruiz Court held that although Giglio material is a form of Brady material, the government can withhold that information from defendants prior to the entry of a plea, although not prior to trial. The ABA opinion makes clear, however, that prosecutors cannot wait for trial, but have to disclose information early enough so that defendants can use it meaningfully during plea negotiations.

The question is therefore whether Rule 3.8(d) applies to Giglio impeachment material in the same way that it applies to information that “tends to negate the guilt of the accused.” In my view, it does, although I recognize that the ABA opinion does not expressly say yes or no, nor does it distinguish between Brady and Giglio the way the Court did in Ruiz. The opinion does say, however, that a prosecutor’s ethical disclosure obligations are broader than her Brady disclosure obligations, which would suggest that the ABA did not think that the Ruiz distinction matters in the ethical context.

Perhaps more fundamentally, the opinion’s broad language seems consistent with requiring prosecutorial disclosure of Giglio impeachment. The opinion says that prosecutors must disclose any information favorable to the defense, even if it’s not material to the outcome, and that the defense gets to decide on its utility, particularly in figuring out whether to go to trial, plead guilty, or investigate other evidence. These are precisely the sort of decisions that are made based on impeachment material. The ABA even contemplates the situation where the government wants to withhold the identity of an informant: the opinion says that the government can seek a protective order, not that the government can withhold the information. In sum, it would seem anomalous for the opinion to require such broad disclosure, but then permit a prosecutor to withhold the fact that her main witness is being compensated for his testimony and has lied in previous cases.