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Washington State introduces exciting new legislation

January 1, 2011 by Alexandra Natapoff

Senator Bob McCaslin (R-Spokane Valley) has introduced Senate Bill 5004 which would vastly improve the way Washington creates and uses criminal informants: An Act Relating to disclosure and regulation of criminal informant evidence and testimony. The effort was triggered by this case — More on the Spokane convictions –in which three young men were convicted based on the testimony of a criminal informant. Even after an acccomplice recanted, saying that the three were set up, the boys still were denied a new trial. The family of one of the three, Paul Statler, has been vigorously advocating for legislative change — hence SB 5004. Inlander Magazine story here: Reasonable Doubt. Full disclosure: I provided Sen. McCaslin’s office with information in support of this bill, and I am strongly in favor of the effort.

This bill is an excellent example of the kinds of legislative change that we can expect more of, as legislatures and the public learn more about the risks of informant use. It is also a moving example of how families of young defendants are influencing the debate over informant policy — see Florida’s Rachel’s Law offers some protection to informants, and Recruiting new informants. This is such an important phenomenon that Snitching.org has created a new subject matter area devoted to it: Families & Youth. More to come.

Afghan drug lord was paid CIA and DEA informant

December 11, 2010 by Alexandra Natapoff

From today’s NY Times “Jailed Afghan Drug Lord was Informer on U.S. Payroll“:

When Hajji Juma Khan was arrested and transported to New York to face charges under a new American narco-terrorism law in 2008, federal prosecutors described him as perhaps the biggest and most dangerous drug lord in Afghanistan, a shadowy figure who had helped keep the Taliban in business with a steady stream of money and weapons. But what the government did not say was that Mr. Juma Khan was also a longtime American informer, who provided information about the Taliban, Afghan corruption and other drug traffickers. Central Intelligence Agency officers and Drug Enforcement Administration agents relied on him as a valued source for years, even as he was building one of Afghanistan’s biggest drug operations after the United States-led invasion of the country, according to current and former American officials. Along the way, he was also paid a large amount of cash by the United States.

For more on the increasingly common terrorism/drug informant connection, see David Headley: another drug/terrorism informant works both sides.

Ninth Circuit overturns murder conviction based on perjured informant testimony

December 1, 2010 by Alexandra Natapoff

Yesterday, in Maxwell v. Roe, the Ninth Circuit decided that Bobby Joe Maxwell’s due process rights were violated in 1984 when the government used Sidney “the Snitch Professor” Storch as the main witness at his multiple homicide trial. LA Times story here: Appeals Court overturns murder convictions of alleged L.A. serial killer.

This is an important case for a number of reasons. The first is historical: Storch was one of the most infamous jailhouse snitches in the Los Angeles County Jail during the 1980s, a period in which jailhouse snitch fabrication was rampant, numerous wrongful convictions occurred, and which eventually triggered a massive Grand Jury investigation and stringent reforms in Los Angeles.

The factual basis for the decision is also important. Appellate courts rarely conclude as a factual matter that a witness such as a jailhouse informant committed perjury, which is one of the reasons it is so difficult to overturn a conviction even after a witness recants. See previous post: In the news– Recantation. In this case, the Ninth Circuit decided that “it was objectively unreasonable for the Superior Court to find that Storch testified truthfully at the 1984 trial,” based on Storch’s history as an informant and his other lies at trial. From the opinion:

There is simply too much evidence of Storch’s pattern of perjury to conclude otherwise. At the time of Maxwell’s trial, Storch was already employing the “booking” formula that he would later teach others and for which he would become famous; the housing records show that Storch had physical proximity to Maxwell; Storch openly admitted that he was in possession of a newspaper article about the murders; the newspaper article itself mentioned all of the specific facts to which Storch testified–namely, that the police had found Maxwell’s palm print on a nearby park bench; and, finally, Storch contacted Deputy District Attorney Sterling Norris with the news of his cellmate’s spontaneous confession and negotiated his own deal in exchange for his testimony.

In other words, it was just too likely that Storch was lying for the government to use him. As our knowledge of jailhouse informants increases, there may be more informants who fit this too-unreliable-to-testify profile.

Finally, the case has doctrinal significance. The court held that the use of Storch at trial violated Maxwell’s due process rights. This was in large part because Storch was the “‘make-or-break’ witness for the state” and “the centerpiece of the prosecution’s case” and therefore his testimony was clearly material to the outcome of the trial. Notably, the court assumed for the sake of argument that the government did not know that Storch was lying — the due process violation flowed not from any intentional government misconduct, but because “to permit a conviction based on uncorrected false material evidence to stand is a violation of a defendant’s due process rights.” This is an important rule — it is not uncommon for defendants to discover post-trial evidence that a key informant witnesses lied–either because of recantations or other impeachment evidence. See for example this post: More on the Spokane convictions. The Maxwell decision suggests that courts may be starting to take such evidence of informant perjury more seriously.

The debate over domestic terrorism informants

November 23, 2010 by Alexandra Natapoff

For the debate over the FBI’s practice of sending paid informants into Muslim communities to ferret out domestic terrorists, compare these two pieces in the wake of the conviction of four men in Newburgh, NY:
From Slate: The Pathetic Newburgh Four: Should the FBI really be baiting sad-sack homegrown terrorists?

“Why does the government’s anti-terror net catch such unconvincing villains: black men near mosques who, in exchange for promises of money, sign on to knuckleheaded schemes that would never exist if it weren’t for the informants being handsomely paid to incite them? [One of the] supposed plotter[s], a Haitian, was a paranoid schizophrenic (according to his imam), which was the reason his deportation had been deferred (according to The Nation’s TomDispatch.com), and who kept bottles of urine in his squalid apartment (according to the New York Times). The last two, both surnamed Williams, have histories of drug busts and minimum-wage jobs in Newburgh. At trial the government asserted that the plot was driven by anti-American hatred. But in papers filed in court by defense lawyers before the trial began, Cromitie is quoted in government transcripts explaining to Hussain that the men “will do it for the money. … They’re not even thinking about the cause.”

From Business Week: NY Bomb Plot Convictions Vindicate Use of Informant

“The convictions of four men for conspiring to bomb New York synagogues vindicated the post-9/11 strategy of using an informant to identify individuals deemed likely to engage in terrorism and encourage them up to the point of arrest, legal experts said. After being approached by one defendant who said he wanted “to do something to America,” the informant testified, he sought to gain their trust, urging them forward with gifts, scouting targets with them and eventually supplying them with dud bombs. Undercover informants played similar roles in three other recent terrorism cases, helping develop, then foil alleged plots to detonate a bomb near Chicago’s Wrigley Field, attack a federal courthouse in Illinois and blow up a Dallas skyscraper.”