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“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.

Pittsburgh Post-Gazette: 1,000 affidavits reveal an “informant mill”

November 24, 2014 by Alexandra Natapoff

The Pittsburgh Post-Gazette has published a series of in depth articles based on 1,329 affidavits filed in U.S. District Court in Pittsburgh from 2009 through 2014. “The affidavits reveal an informant mill in which suspects became informants and helped agents to bust others, who then in turn became informants aimed at other targets.” The series also includes stories regarding corrupt police, cases derailed by informants and wrongful convictions. From the Post-Gazette:

“The Post-Gazette has uncovered instances in which informants used to build federal cases were convicted murderers, liars or double agents working with both law enforcement and the targets. One informant with a violent past, used in a DEA case that ended in acquittal, wasn’t put through the federal review process.

The results have included the indictment and incarceration of people whose lives were turned upside-down prior to their exonerations. Only nine people have been fully acquitted in federal court cases brought in Pittsburgh since 2009, but four of those not guilty verdicts involved shaky informants. Two of those exonerated defendants first spent years behind bars.”

From the affidavits, the Post-Gazette constructed a picture of how often different federal agencies used informants in that jurisdiction. On average, approximately 40 percent of the affidavits relied on informants, but agencies diverged. For example, an article entitled “Gathering and Analyzing Data,” the Post-Gazette explained:

“Confidential informants were much more prevalent in drug cases. Of the 94 cases led by the Drug Enforcement Administration or its task forces, 60 were built using confidential informants. Thus nearly two-thirds of the DEA’s cases were based on secret sources. By contrast, the FBI used confidential informants in just under one-third of the 126 cases that stemmed from its affidavits. The Bureau of Alcohol, Tobacco, Firearms and Explosives used confidential informants in 13 out of 34 cases, or 38 percent, consistent with the average.”

The last in the series here: Experts offer solutions to confidential informant problems.

More on the Orange County snitching scandal

November 10, 2014 by Alexandra Natapoff

The revelations that the California Orange County District Attorney’s Office has been secretly using jailhouse snitches without disclosing information to defense counsel has led to some stunning developments, including dropped homicide cases and the release of a man held for two murders. As Radley Balko at the Washington Post put it, “Incredibly, Orange County prosecutors appear to be ready to let accused murderers and other alleged felons go free rather than open up practices and tactics to scrutiny.” In an article entitled “Here is why an admitted killer walked free,” the OC Register explains one case:

“Isaac John Palacios admits he shot and killed a rival gang member, pulling the trigger at least 15 times in a Santa Ana driveway. Last month, he pleaded guilty to second-degree murder, a crime that often carries a life sentence.

But Palacios walked free hours later from the county jail. Despite the guilty plea, Orange County prosecutors agreed to release the 30-year-old gang member, giving him credit for time served, and dropping charges against him in a second gang killing.

The lenient deal is a casualty of the district attorney’s surreptitious use of jailhouse informants to gather information from suspects awaiting trial and the office’s tardiness in turning over evidence to the defense. This conduct came under legal attack this past year during the prosecution of Orange County’s largest mass killing case. …

The lead prosecutor in the Palacios case, Marc Rozenberg, said he agreed to the deal, in part, because he didn’t want another judge to review evidence of discovery and informant violations. One local judge already ruled prosecutors committed misconduct.”

“The Prosecutor and the Snitch”

October 15, 2014 by Alexandra Natapoff

In this extensive review of the infamous Cameron Todd Willingham case, the Marshall Project zeroes in on the role of the jailhouse informant, Johnny Webb, and the prosecutor who covered up his rewards. Story here: The Prosecutor and the Snitch: Did Texas execute an innocent man? According to the article, Webb “lied on the witness stand in return for efforts by the former prosecutor, John H. Jackson, to reduce Webb’s prison sentence for robbery and to arrange thousands of dollars in support from a wealthy Corsicana rancher. Newly uncovered letters and court files show that Jackson worked diligently to intercede for Webb after his testimony and to coordinate with the rancher, Charles S. Pearce Jr., to keep the mercurial informer in line.”

In post-trial interviews, Webb said that the prosecutor approached him about testifying:

“[H]e asked Jackson, “What’s going to be my deal?” and Jackson said, “If you help me, that robbery will disappear … even if you’re convicted now, I can get it off of you later.” …“He says, ‘Your story doesn’t have to match exactly… He says, ‘I want you to just say he put fires in the corners. I need you to be able to say that so we can convict him, otherwise we’re going to have a murderer running our streets.’ ” … “He [Jackson] had me believing 100 percent this dude was guilty — that’s why I testified,” Webb said. “The perks — they was willing to do anything to help me. No one has ever done that, so why wouldn’t I help them?” In fact, Webb said, Willingham “never told me nothing.”