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Texas considers banning informant testimony in capital cases

June 4, 2015 by Alexandra Natapoff

Several states are considering new legislation to regulate informant use. In Texas, HB 564 would ban the use of compensated criminal witnesses in death penalty cases altogether. The bill provides that the “testimony of an informant or of an alleged accomplice of the defendant is not admissible if the testimony is given in exchange for a grant or promise by the attorney representing the state or by another of immunity from prosecution, reduction of sentence, or any other form of leniency or special treatment.” Full story at The Intercept here. Radley Balko at the Washington Post calls the bill a “significant first step” in recognizing the inherent unreliability of informants. As Balko, who has written about informant debacles before, puts it:

“The whole concept of jailhouse informants defies credulity. The very idea that people regularly confess to crimes that could put them in prison for decades or possibly even get them executed to someone they just met in a jail cell and have known for all of a few hours is and has always been preposterous. Not to mention the fact that these are people whose word prosecutors wouldn’t trust under just about any other circumstance.”

In North Carolina, HB 700–which did not pass–would have created comprehensive regulation of jailhouse informants, including corroboration requirements, enhanced discovery, jury instructions, and data collection. Story here. An interesting feature of this bill was that it would have created a “rebuttable presumption of inadmissibility,” placing the burden on the government to show that these risky witnesses should nevertheless be permitted to testify.

Washington Post: witness intimidation a continuing problem

January 11, 2015 by Alexandra Natapoff

This Washington Post story is entitled “Dozens in D.C., Maryland paid the ultimate price for cooperating with the police.” It documents numerous recent deaths and the continued threats to cooperating witnesses. From the story:

[A]t least 37 people in the District and Maryland [] have been killed since 2004 for cooperating with law enforcement or out of fear that they might, according to a Washington Post examination of hundreds of police and court records. . . . .

The Post’s review found that among those killed for cooperating with authorities or out of fear that they might:

●At least 19 didn’t receive protection, including a confidential informant working for the Drug Enforcement Administration who was lured to a home by a drug dealer’s girlfriend and then fatally shot by the dealer.

●At least five were killed after defense attorneys learned their names or other identifying information and told their clients. In one case, a lawyer tipped off a defendant that prosecutors wanted to interview the witness. Six days later, the witness was found dead.

●Nine were offered protection but declined, including a 38-year-old Baltimore County man who was unaware of the long criminal history — including murder, attempted murder and firearms charges — of the man he was scheduled to testify against.

●At least five were slain after they were relocated but returned to their old neighborhoods.

●In at least four cases, charges against a defendant were dropped after the witness was killed.

Jailed Mexican mafia snitches receive $150,000 and leniency

November 24, 2014 by Alexandra Natapoff

From the Orange County Register: Money, cable TV, food delivery: How Mexican Mafia snitches lived like kings behind bars. Here are a few excerpts:

“As two of the most prolific jailhouse informants in Orange and Los Angeles counties, Raymond Cuevas and Jose Paredes befriended suspects in jail and collected information in more than 30 criminal cases, according to a spreadsheet assembled by prosecutors. …For their efforts, Cuevas and Peredes received more than $150,000 from local law enforcement agencies during an 18-month period ending in March, records show.

The pair enjoyed other perks, too, including cable TV in their cells and Del Taco food delivered by officers. Cuevas and Paredes also received leniency on criminal charges that could have sent them to prison for life, according to court transcripts and other records.

Thirty-nine-year-old Cuevas, known as “Puppet,” was arrested four times for armed robbery. His last arrest was on charges of possessing a loaded weapon, a possible third strike that could have sent him to prison for life. Instead, the informant received a deal that allowed him to plead no contest in 2013; he received credit for five years already served but no prison sentence.

For several years, Cuevas was the shot-caller for Latino inmates at Los Angeles’ North County Correctional Facility, according to a ruling from the Second District Court of Appeal. On one occasion, he informed his deputy handler that he had just ordered a knife attack on another inmate as part of a jail turf war, the ruling stated. No action was taken by Los Angeles County deputies to prevent the attack, which left the inmate seriously wounded, the ruling said. Cuevas was not prosecuted for the attack, but two inmates who carried out the order were convicted, according to the appellate ruling.”

“Outrageous government conduct” in stash-house stings

November 24, 2014 by Alexandra Natapoff

A federal judge has dismissed a conspiracy indictment against a defendant accused of participating in a drug robbery in which the ATF, working with a confidential informant, set up an elaborate and imaginary stash-house robbery sting. Courts have traditionally been slow to invoke the “outrageous government conduct” doctrine, which protects defendants against government operations that are “grossly shocking” and that “violate the universal sense of justice.” But these increasingly common stash-house stings have brought the issue to the fore. See L.A. Times story here.

In this case, the Court distinguished between permissible government efforts to infiltrate criminal organizations, and “manufacturing crime” in order to generate convictions. From the opinion:

“The Court finds that the Government’s extensive involvement in dreaming up this fanciful scheme—including the arbitrary amount of drugs and illusory need for weapons and extra associates—transcends the bounds of due process and renders the Government’s actions outrageous.”

In particular, the Court objected to the fact that the ATF knew nothing about the defendant Antuan Dunlap until he was brought into the scheme five days before the alleged robbery.

“Allowing after-the-fact knowledge . . . in a situation like this creates a perverse incentive for the Government. It encourages the government to cast a wide net, trawling for crooks in seedy, poverty-ridden areas—all without an iota of suspicion that a particular person has committed similar conduct in the past.”

While this case hinged on the fact that the government manufactured the robbery sting from whole cloth (the Court noted dryly that the total amount of drugs taken off the streets in such stings is “zero”), like many such cases the sting depended on a criminal informant who brought the defendants to the government in the first place, and kept the operation going. This model–of an undercover agent and/or an informant cooking up nonexistent crimes–may be coming in for new scrutiny.