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.
snitching = when police or prosecutors offer lenience to criminal suspects in exchange for information or cooperation
Snitching Blog is about a part of our criminal system that most people know little or nothing about: criminal informants, or snitches. At any given moment, thousands of informants are trying to work off their own criminal liability by giving information to the government. These informants may be in court, in prison, on the street, or in the workplace. Police and prosecutors often rely heavily on information obtained from snitches–especially in drug enforcement but also in white collar crime, organized crime, and terrorism investigations. In fact, it is impossible to fully understand the U.S. legal system without understanding snitching. Nevertheless, there is very little public information available about this important public policy. That’s where Snitching Blog comes in.
This blog does a bunch of things. It discusses how snitching works–on paper and in reality. It provides resources to individuals, lawyers, law enforcment, and legislators–check out the links on the left. It covers current events and news stories. And it lets you share your own experiences by posting a “Testimonial”–click on the link at the right.
Please look around. Suggestions are welcome.