Blog

Many thanks for Michael Rich for sharing his work and insights. Additional guest bloggers coming soon.

As my brief tenure as a guest blogger here comes to an end, I just want to thank everyone for reading my contributions. I hope that I have been able to add in a meaningful way to discussions about how best to use, manage, protect, and recruit informants. For those of you who are interested, I hope that you will keep tabs on my profile on SSRN, where I hope soon to be posting my most recent work on informants, including an article discussing the moral status of informing and how that status should impact when and how police and prosecutors recruit and use informants and another contemplating the propriety and value of police encouraging civilians to commit immoral acts in the name of fighting crime. Until then, thank you.

The Massachusetts Supreme Judicial Court recently rejected a motion by Calvin Carnes, a convicted killer, to stay his appeal pending his attempts to seek a new trial on the ground that the prosecution withheld exculpatory evidence. The evidence in question was an affidavit of a jailhouse informant who claimed that Robert Turner, one of Carnes’s accomplices, confessed to the homicides. The Suffolk District Attorney’s Office justified waiting eighteen months to turn over the affidavit on the ground that they had needed time to check out the informant’s story, meet with Turner’s attorneys, and, assuming the informant’s story was true, allow Turner more time to make incriminating statements. The prosecutors further argued that the delay didn’t matter because the informant was “unreliable and untrustworthy based on his extensive criminal history and the fact that he was giving inaccurate and incomplete information.” The response of Ellen Zucker, Carnes’s attorney, is worth quoting in full:

Prosecutors use jailhouse snitches all the time when they’re seeking prosecution of somebody. In each case, they have a profile not dissimilar to Mr. Smith, [the informant in this case]. It would be very curious if the district attorney took the standard they’re applying to Mr. Smith and applied it to every jailhouse snitch they put on the stand to try to get a conviction.

Of course, a lying informant is not valuable to anyone, and it is in everyone’s best interest for the state to ensure that informants are not permitted to lie. And in the ideal world, the police and prosecutors would exert just as much effort to test the veracity of informant’s testifying for them as they do when an informant wishes to provide unhelpful testimony. But if the history of informant use has taught us anything, it is that the combination of more-or-less unbridled prosecutorial discretion, secrecy in the handling of informants, and zeal for convictions has led to inconsistent stances by states depending on whether they are relying upon or attempting to rebut informant testimony. In other words, every jailhouse informant is a lying rat unless he’s testifying for your side.

San Francisco City Attorney Dennis Herrera has filed suit seeking a civil injunction against forty-one young, African-American men who he alleges are members of two rival gangs. If granted, the injunction would impose a 10 p.m. curfew on the men and forbid them from “trespassing, selling drugs, and illegally possessing firearms, loitering, displaying gang signs, and associating in public” in a two-tenth square mile area in San Francisco. Unlike a criminal action, none of the listed individuals have a right to counsel to defend against the action and given that the injunction deals with residents of a public housing project, it is unlikely that they have the funds to hire their own. As for how the men are identified as gang members, the City Attorney’s Office applied criteria also used in other states, including Florida, Tennessee, South Dakota, and New Hampshire, for IDing gang members. Under these standards, an individual must meet at least two of ten criteria to be considered a gang member, and two of the criteria are informant-related: “Subject has been identified as a gang member by a reliable informant/source,” and, “Subject has been identified as a gang member by an untested informant or source with corroborative evidence.” Though how the criteria are applied is murky, the plain language of these two suggests that one can be identified by law enforcement as a gang member almost entirely by informant action. Indeed, if two informants, one reliable and one untested, finger the same person as an informant, that might be enough, so long as the reliable informant is deemed “corroborative evidence” for the untested informant’s identification. And, as the San Francisco case shows, the implications of such an identification are far-reaching.

In San Francisco, being deemed a gang member may mean that your First Amendment rights to association are restricted. Moreover, in California, Tennessee, Florida, South Dakota, and New Hampshire, if you’re labeled a gang member by informants, you are subject to significantly higher penalties if convicted of the same crime. In addition, your assets are more likely to be subject to forfeiture, and information about you will be stored in government databases for years. And what’s notable about most of these effects is that they occur without the same kind of due process accorded in criminal trials (the exception being the enhanced criminal penalties, which generally require that the jury find beyond a reasonable doubt that the defendant is a gang member). The result, as in San Francisco, is that when they happen there is little a resident of a inner-city, high-crime neighborhood can do about it, because they lack the resources to do so.

And the gang member identification is only one of the more formalized secondary impacts of police use of informants. By secondary, I mean tangential to the main use of informants, which is to “make” criminal cases. Other secondary effects of informant use may be increased police surveillance of alleged criminals, interactions with police that do not lead to arrests, and stigmatization within communities, leading to interpersonal and intrafamily tensions and loss of job prospects. All of these can occur when police rely on informants who are pressured to come up with evidence for their handlers, either to earn money or to work off a beef. And unlike a criminal charge, which at least will involve a defense attorney and some due process, these negative secondary effects are nearly impossible to reverse. Indeed, because police dealings with informants are hidden from public view, they are particular difficult to combat.

Ultimately, this simply means that their is more at stake when it comes to restricting informant use or making it more open to public scrutiny than “merely” criminal convictions. Police harassment, loss of privacy, impingement on civil rights, and loss of property rights also are at issue.

On Wednesday, FBI Special Agent Robert Fuller testified that the US government paid informant Shahed Hussain about $100 per day and $52,000 total for his work in helping to plan a fake plot to bomb a New York City synagogue. The four individuals that he worked with are currently on trial for their roles in the plot. In Florida, Tampa police and the FBI paid an informant approximately $2,400 per month to set up twelve alleged gang members. On its own, neither rate is extraordinary. But now in the Florida case, some of the twelve accused gang members have filed suit against the FBI, the city of Tampa, and individual officers, claiming malicious prosecution and civil rights violations. The criminal cases against alleged gang members were thrown out after a state court judge found egregious misconduct by the informant in the case. Even if the civil case is unsuccessful, the cost to the taxpayers of defending it will be significant and will certainly dwarf the money originally paid to the informant. These legal costs are an inevitable part of a system that thrives on minimal oversight and self-enforced guidelines.