Snitching

Criminal Informant Law, Policy, and Research

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Lawyer-informant wears wire to record inmate

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This post from TalkLeft “Govt Wires Lawer as Informant to Tape and Incriminate Inmate” describes the disturbing story of defense attorney Terry Haddock who secretly recorded more than 30 conversations with inmate Shannon Williams who has now been charged with money laundering. Haddock says he told Williams that he (Haddock) wasn’t acting as his lawyer; Williams says he hired Haddock to represent him. I argue in the book that the spread of snitching has affected the role of the defense attorney–this is a prime example. From TalkLeft:

Even if Haddock told Williams he wasn’t representing Williams in the lawsuit, if he gave advice on it, it seems reasonable that Williams would think Haddock was providing legal counsel to him and that they had a privileged relationship. It’s not a requirement of the lawyer client privilege that the lawyer officially you in a court proceeding.

Of course, when a lawyer participates in the client’s crime, the crime-fraud exception to the attorney-client privilege kicks in and the privilege no longer applies. But it’s one thing for the client and lawyer to agree together to violate the law, and another for the cops on their own to get the lawyer to pretend to to agree with the client to violate the law. The latter, even if legal, seems morally bankrupt.

After all, why would Williams trust Haddock with the illegal details of his business? Because he trusted him. Why did he trust him? Because he thought he was his lawyer.

Whether it turns out to be legal or not, it’s a really crummy way to make a pot and money laundering case. While I’m not shocked the U.S. Attorney’s office and police department used the tactic, I can think of no justifiable excuse for Haddock. Like Pignatelli, he brings shame to the legal profession, and if only one defendant out there reads about Haddock and decides not to trust his or her lawyer with the truth, hindering their lawyer’s ability to mount an effective defense, it’s one person too many.

Some things are more important than catching drug dealers, and the public’s faith in the sanctity of the attorney-client privilege is one of them.

FBI informants infiltrating Muslim communities

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The New York Times just ran this piece entitled Muslims Say FBI Tactics Sow Anger and Fear. The piece describes the perennial tension between law enforcement’s need to gather information and the needs and rights of groups and communities against whom informants are used. From the article:

Since the terror attacks of 2001, the F.B.I. and Muslim and Arab-American leaders across the country have worked to build a relationship of trust, sharing information both to fight terrorism and to protect the interests of mosques and communities. But those relations have reached a low point in recent months, many Muslim leaders say. Several high-profile cases in which informers have infiltrated mosques and helped promote plots, they say, have sown a corrosive fear among their people that F.B.I. informers are everywhere, listening. “There is a sense that law enforcement is viewing our communities not as partners but as objects of suspicion,” said Ingrid Mattson, president of the Islamic Society of North America, who represented Muslims at the national prayer service a day after President Obama’s inauguration. “A lot of people are really, really alarmed about this.”

The book’s section on political informants discusses the law and history of this longstanding tension. On the legal side, the government has substantial authority to use informants to monitor religious and political activities. Notwithstanding the First Amendment’s guarantee of free speech and association, courts have made clear that the use of informants and infiltrators alone does not infringe the First Amendment rights of political or religious groups. This means that the FBI can legally send informants into mosques and churches to observe people and events. If those informants go further and actively interfere with constitutionally protected activities, the First Amendment may be violated.

The implications of informant infiltration, however, go beyond legal rules. Cases from the Vietnam War and civil rights eras describe how government informants undermined anti-war, civil rights, socialist, and other political organizations by provoking conflict and instigating illegal activities. Thirty years ago, MIT sociology professor Gary Marx wrote a seminal piece on the informant provocateur phenomenon entitled “Thoughts on a Neglected Category of Social Movement Participant: The Agent Provocateur and the Informant,” 80 Am. J. Sociol. 402 (1972). Marx argued that informants can actually become an integral and problematic part of social organizations, warning that “undercover agents can seriously distort the life of a social movement; they can serve as mechanisms of containment, prolongation, alteration, or repression.”

A witness intimidation crisis in Philadelphia

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WSJ Blog picked up this lengthy story from the Philadelphia Inquirer, documenting rampant witness intimidation, violence, and the inability of city prosecutors to prosecute violent crimes. One witness saw his own written statement to police posted on a wall as a flier, with the following words scribbled on it: “Don’t stand next to this man. You might get shot.” From the Inquirer:

“It’s endemic. People are frightened to death,” said District Attorney Lynne M. Abraham. “We’ve had witness after witness intimidated, threatened, frightened.” And the city cannot guarantee their protection. “That fear, that’s real,” said Jamie Egan, a former city prosecutor. “When people would ask me if I could guarantee their safety, I would say, ‘Unfortunately, I cannot.'” Abraham has long fought for more money to protect and relocate witnesses in criminal cases. For 15 years, she has repeatedly complained, to no avail, that the city’s program was underfunded and failing to meet a crucial need. Local funding for witness relocation is a fraction of the spending in the vaunted federal witness-protection program. Efforts to pump city money into the local program have failed year after year.

Witness intimidation is part and parcel of the more general violence, insecurity, and lack of resources in so many inner city neighborhoods. According to the National Institutes of Justice, witness intimidation is a longstanding problem in poor, high-crime communities like Philadelphia, especially in gang-dominated neighborhoods. Over a decade ago, studies warned about localized violence and witness intimidation in areas of concentrated poverty and crime. Stories like the Inquirer’s suggest that the problem is now even more widespread. As I argue in the book, states need resources comparable to the federal WITSEC program to protect witnesses, particularly poor witnesses who lack resources themselves and may be stuck in violent neighborhoods. As a parent of a murdered young witness mourned in the Inquirer article:

“If you see something, you better look the other way. That’s a sad thing to say to a victim, but I’m the number one candidate saying ‘Don’t tell nothing unless you can take care of yourself, because the city don’t have nothing in place to help you.'”

IRS expands use of informants

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Two fascinating stories from Forbes on the IRS’s expanded Whistleblower Office: Tax Informants are on the Loose, and IRS Ordered to Surrender Informant Documents. In 2006, Congress told the IRS to start paying informants as much as 30% of delinquent taxes collected in big cases, and the scale of snitching has skyrocketed. As Forbes puts it:

The gambit seems to be working very well. The IRS continues to get thousands of small case tips a year. But in fiscal 2009, ended Oct. 30, the IRS Whistleblower Office also logged big case leads on 1,900 taxpayers, up from 1,246 in fiscal 2008, the first full year the new law was in effect. Dozens of these tips involve purported tax losses of $100 million or more. Sure, those are just allegations. But informants “often provide extensive documentation to support their claims,”‘ the Whistleblower Office noted in a report. The Treasury Inspector General for Tax Administration, in a separate report, added up all the 2008 tips and found that $65 billion in unreported income was alleged.

Perhaps the most famous case to date involves Bradley Birkenfeld, an employee of the Swiss bank UBS who gave the IRS information on how wealthy Americans were hiding money with his employer. Although Birkenfeld himself faces a 40-month prison sentence, he may be able to keep millions in reward money–another new rule. Again from Forbes:

Before the new law, IRS Whistleblower Officer Director Stephen Whitlock notes, “if you participated in the tax noncompliance–you could have been the accountant doing the ministerial activity–you could be flat-out barred” from a reward. Now such a functionary is eligible for a full reward, even if he is convicted of, say, stealing from the company he squeals on. An informant who “planned and initiated” a tax scheme is still eligible for a reduced award–unless he’s convicted for that planning role.

In other words, the IRS is moving closer to the snitching norm, in which admitted criminals reap benefits from their cooperation. At the same time, the IRS informant program may be running into resistance. In the second story, a federal judge has ordered the IRS to return documents provided by an informant who stole the documents from the company Monex. Apparently the court was not content to let the government decide which stolen Monex documents were privileged, although the government is likely to get many of the documents back in the end. As Forbes frames the problem, “How far can the government go in using information from an insider and what should be the procedures for handling that information?” As I explain in the book, this concern for the privacy and rights of criminal targets–and the concomitant restrictions on informant use–is more characteristic of white collar investigations in which defendants tend to be well-resourced and well-defended, and is notably lacking in the street- and drug-enforcement arena.