Snitching

Criminal Informant Law, Policy, and Research

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NPR series on “House of Death” informant

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NPR is running a three-part series on the federal informant connected to the so-called House of Death murders that occurred six years ago in Ciudad Juarez, Mexico: The Case of a Confidential Informant Gone Wrong. For additional coverage of this story, see this 2007 Dallas Observer feature entitled House of Death. The informant, who was known as “Lalo” to his handlers, was working for the federal Immigration and Customs Enforcement agency (ICE) even as he participated in drug-cartel-ordered executions. Top ICE officials deny knowledge of the murders and claim that “rogue agents” failed to follow guidelines, while Lalo’s handler, Agent Raul Bencomo, says his supervisors knew about the killings. According to NPR, ICE withheld information about Lalo’s role in the murders from the DEA and from Mexican officials. Former DEA Special Agent Phil Jordan describes the Lalo case as a disaster in which every rule was broken.

Even if the man was John Gotti in his prime, you do not allow an informant to run the investigation; you do not let the informant commit felonies, to commit murder. In my mind, he was given a license to kill.

Jordan testified in the now-defunct civil suit against ICE brought by relatives of the slain House of Death victims, two of whom were U.S. residents.
Lalo has been in federal custody for five years. Now that the case against Lalo’s target is over, ICE is trying to deport him back to Mexico.

The criminal informant model spreads to the SEC

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The Los Angeles Times reports that the SEC wants to emulate the IRS’s bounty program for rewarding criminal informants: SEC chief wants to catch investment scammers in the act. I posted about the IRS program here: IRS expands use of informants. This trend towards courting criminal informants in white collar investigations, as opposed to innocent whistleblowers, is part of a larger systemic culture in which guilt has become completely negotiable. The IRS, for example, used to balk at rewarding offending informants who actually participated in the wrongdoing, but its new rules make it easier to do. To be sure, there are immense informational benefits to using offenders as snitches–they tend to have more information than innocent bystanders. But it squarely raises one of the central compromises that has dogged criminal snitching in drug and mafia investigations, which is that the process can forgive and even reward serious wrongdoers. The IRS and SEC should think carefully about the extent to which they are willing to emulate the world of drug enforcement, in which guilt and punishment have become percevied as commodities, in which cooperation can become a kind of get-out-of-jail-free card, and in which law enforcement is too often seen as tolerating crime and even violence from its informants in order to secure information.

Reform efforts in Texas and elsewhere

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It is becoming increasingly common to see state commissions devoted to reducing wrongful convictions. These commissions often focus on three key sources of error: mistaken eyewitness testimony, false confessions, and snitches, although there are many additional subjects as well. For example, the California Commission on the Fair Administration of Justice proposed several legislative reforms in this vein–the jailhouse informant corroboration reforms were passed twice by the California legislature but vetoed by Governor Schwarzenegger. Wisconsin recently established the Wisconsin Criminal Justice Study Commission. In 2002, North Carolina created a special commission to review post-conviction innocence claims.

In this same vein, Texas has established the Tim Cole Advisory Panel to reduce wrongful convictions in the state, and one of its missions is to examine the use of informants. Here’s a recent news story about the Commission’s visit to Tarrant County, Texas, in which the district attorney maintains a much-praised open-file policy. Here’s an excerpt from GritsforBreakfast coverage of the panel’s first meeting: Good vibes at Tim Cole Advisory Panel on false convictions.

Police raids and imaginary informants

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Dennis Fitzgerald is a former DEA agent and Miami police narcotics supervisor. He has written an article entitled “Wrong-Door Raids, Phantom Informants, and the Controlled Buy,” in which he not only describes problems with drug informant use, but also some best practices that can counter them. For example, he points out that “the creation of ‘phantom informants’ is a practice that has plagued police departments for decades,” and recommends that police agencies institute better documentation requirements to counter this problem. More generally, he discusses the problem of wrong-door raids and the police practices that generate them. From the article:

During the last 20 years, police have killed at least 40 innocent people while conducting wrong-door raids. According to a study by the Cato Institute, “Because of shoddy police work, over-reliance on informants, and other problems, each year hundreds of raids are conducted on the wrong addresses, bringing unnecessary terror and frightening confrontation to people never suspected of a crime.”

Here’s a link to the Cato Institute raid map. Fitzgerald goes on to identify the problems that lead to such raids, including:

1. Willful disregard for police standard operating procedures governing the use of informants and conducting controlled buys

2. Use of “cookie cutter” affidavits containing boilerplate language from a computer program

3. Blatant lies in search warrant affidavits

4. Creation of phantom informants

5. Supplying drug exhibits “purchased” by a phantom informant

6. Planting drugs in homes when no drugs are discovered during a search.

Fitzgerald is also the author of the book “Informants and Undercover Investigations: A Practical Guide to Law, Policy and Procedure” (CRC Press, 2007).