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To what extent should the government employ and reward murderers, drug dealers, and other criminals as informants? In a developing case in Texas, the U.S. government is trying to figure out who killed one of its Mexican drug cartel informants. Turns out it might have been another U.S.-run informant. Story here.
I bring up this incident because it illustrates a bunch of key issues. One is just a matter of scale: there are now so many informants in the system that we get cases like these in which the government is running the people on both sides of the crime. That’s how deep the phenomenon runs.
Second: The government routinely permits serious criminals to remain at large because they are useful, even though they are highly likely to commit new crimes. As one former U.S. special agent remarked about the Texas case, federal officials knew that their informant’s job was tracking down people that the cartel wanted to execute. Given that, they “probably should have known he was conspiring to kill someone.” Now they’re mad because he may have killed one of their other informants. The problem of government-tolerated snitch crime is an old problem. Check out the 2004 congressional report at the left entitled “Everything Secret Degenerates: The FBI’s Use of Murderers as Informants.” Congress found it appalling that the FBI let known mob murderers remain at large because they were snitching on their rival mafia counterparts. In Chapter Five of my book, I document how the toleration for informant wrongdoing is widespread and can worsen crime and insecurity in inner city communities.
Finally, the Texas story reminded me of Troy Smith. As part of his informant deal, Troy Smith had to produce six arrests of other people in order to avoid drug charges himself. When he tried to sell meth to another informant as part of his quota, he got busted. Because of a procedural mistake by his lawyer, Smith could not raise the “public authority” defense, i.e. the claim that the government authorized him to commit the crime. Smith is currently serving a 12-year sentence, arguably for doing exactly what the government told him to do. I tell this story not only because it seems ironic and unfair, but because the pervasive use of informants invites precisely this kind of debacle.
When a criminal informant recants his testimony after a defendant has already been convicted, it is typically very difficult for that defendant to get a new trial. This happens more often than you might think–informants change their stories all the time, but the rules of criminal procedure and habeas corpus make it very hard to upset the original conviction. Today’s New York Times reports on Fernando Bermudez, a man who tried 11 times to get his 1992 murder conviction overturned after the main witness recanted. A new judge has finally held that he might be entitled to a new trial. Mr. Bermudez also has the good fortune to be represented by my exceptionally skilled former colleague Barry Pollack, partner at Miller Chevalier.
Sometimes I will post about an aspect of what I call informant law – i.e. the legal rules and policies that govern the use of informants. An important but little-known fact about the rules of snitching: defendants who go to trial are constitutionally entitled to negative information about informants who might testify against them (usually referred to as impeachment or Giglio material), while defendants who plead guilty (approximately 95 percent of all felony defendants) are not entitled to this information.
Lets say Defendant Jane Smith is accused of dealing drugs, based on the say-so of criminal informant John Doe. If Smith goes to trial, the government is obligated to give her any material information in its possession regarding Doe’s credibility, including the rewards he got for cooperating against Smith, his prior convictions, instances of perjury or recantations, and things like that. The Supreme Court has held that this is necessary to ensure a fair process. But the Supreme Court also held in United States v. Ruiz that if Smith takes a plea, she has no right to see that information. This means she has to decide whether to plead guilty without knowing how credible or corrupt John Doe might be. She only gets to learn that information if she rolls the dice and goes to trial.
Ruiz is about what the U.S. Constitution requires–other rules may come into play. For example…
some states and districts demand more disclosure, and require the government to provide impeachment material to defendants to be considered during plea negotiations. Some federal prosecutorial offices provide informant impeachment material voluntarily as a matter of internal policy. But the bottom line is that, constitutionally speaking, they do not have to.
This rule has some significant consequences. One is that the government can insulate shady informants by offering defendant good deals. Thats what happened in Ruiz – the government offered Angela Ruiz a so-called fast track plea if she would waive her right to impeachment material about the snitch in her case. If a defendant is sufficiently scared of going to trial-maybe her lawyer doesn’t have time or resources, or maybe she has a prior record and can’t testify-she may take the deal to avoid a worse sentence.
More broadly, it means that the government can expect that in the vast majority of cases it will never have to disclose the deals it makes with its informants, or the kinds of people that it uses as informants, because over 90 percent of cases are resolved by plea. When defendants don’t get to see this material, the public doesn’t either.
This is a problematic way to run a criminal system that is ostensibly committed to transparency and public adjudications of guilt. When informant deals stay secret, the public loses sight of how police and prosecutors evaluate crime and impose punishment. Many criminal informants escape liability for very serious crimes – Ruiz makes it easier for the government to hide this fact. When information sources are shielded from scrutiny, moreover, we don’t get to see how the government investigates crime or chooses its targets. These are important aspects of criminal justice, but the nature of snitching rules like the Ruiz decision tends to erase them from public view.
I recommend this recent feature article in Reason Magazine by Radley Balko, entitled Guilty Before Proven Innocent. It tells the mind-blowing story of an innocent family in Louisiana, Ann Colomb and her three sons, who were wrongfully convicted of drug trafficking based on the testimony of numerous prison snitches. The informants were part of an information-selling network inside the federal prison, in which inmates purchased files and photographs to help them fabricate testimony which they then marketed to prosecutors in order to get sentence reductions. A bunch of inmates got hold of the Colomb file, and told prosecutors that they would testify against the family. If it werent for a few chance encounters that revealed the scam, the Colomb family would still be in federal prison.
I like this story because it highlights some classic problems with criminal informants. It also illustrates the scale of the phenomenon–and its potential for massive miscarriages of justice– in ways that may be surprising to people unfamiliar with the daily workings of the criminal process.
As the story illustrates, criminal informants are a primary (and infamous) source of wrongful convictions. Check out the link to the Northwestern University Law School report entitled The Snitch System on the left. Second, there are a lot of them: the government planned to use dozens of prison snitches against the Colomb family, and presiding Judge Tucker Melancon indicated that the phenomenon was pervasive. Third, prosecutors rely heavily on them even when the government should be suspicious. The prosecutor in the Colomb case did not appear to know that his prison snitch witnesses were selling information to each other and then lying about it; rather, he took them at their word even though he knew they had massive incentives to lie. Perhaps most importantly, the story shows how snitching has become commonly understood as a way for suspects and inmates to game the system. The Louisiana snitch ring sold information for thousands of dollars inside and outside the prison. This business plan was a response to a central fact about the U.S. criminal process–that information and leniency are traded freely between offenders and the government without rigorous fact-checking. This case just took it to a new level.