Snitching

Criminal Informant Law, Policy, and Research

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Huffington Post on jailhouse snitches and exonerations

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Today’s Huffington Post reports on the recent death row exonerations of Yancy Douglas and Paris Powell–both men were convicted based solely on in-custody or “jailhouse” snitch testimony. The post was written by John Terzano, president of the Washington D.C.-based Justice Project, which has produced a report on jailhouse snitch use and policy recommendations. Here’s an excerpt from the post:

These exonerations highlight the power prosecutors have in securing convictions by utilizing in-custody informant testimony, even when no physical evidence links a defendant to the crime. Testimony by in-custody informants or “jailhouse snitches” as they are often referred, is a leading cause of wrongful convictions. With little to lose, jailhouse snitches have great incentives to provide false information to prosecutors in exchange for leniency or other forms of compensation. Deals that are made between prosecutors and jailhouse snitches do not often come to light when a jury has to weigh the evidence is a case.

British “stop snitching” rap song on YouTube leads to convictions

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Two british rappers have been convicted of obstructing justice for putting an anti-snitching rap song on YouTube. Story here. The two men had been arrested but not prosecuted in connection with a shooting murder last year. While the defendants claimed the song was just gangsta rap, the government argued that “the video had but one purpose–to threaten any witness to this incident to frighten them to such an extent that they would refuse to cooperate with the police.”

The U.S. has First Amendment protections for art and speech that the U.K. lacks, which would make it significantly more difficult to prosecute such cases. Here, the government would have a heavy burden to show that the rap song represented a true threat aimed at a particular person and not a more general expression of anti-snitch sentiment. Although I am unaware of any such prosecutions to date, it is only a matter of time. A recent note in the Columbia Journal of Law & the Arts entitled “Can’t Stop Snitchin’: Criminalizing Threats Made in ‘Stop Snitching’ Media under the True Threats Exception to the First Amendment,” addresses the legal standard. The piece argues that with sufficient specificity, some “stop snitching” songs might lose their First Amendment protection and qualify as threats, although it would be rare. As author Jacob Honigman puts it:

It might be theoretically possible–by recording a song that references a particular person or crime in a manner sufficiently serious enough to indicate that the artist actually intends to commit an act of violence, or by performing a song threatening snitches in front of a courthouse as a trial is scheduled to begin–for a hip-hop artist to cross the true threat line. But I am not aware of any such instance. This, combined with the tradition of affording all forms of music, including rap, full First Amendment protection, make it extremely unlikely that such a statement could be criminalized.

More generally, the First Amendment has not prevented rap lyrics from being used against their authors as criminal evidence. Rap songs have been admitted as evidence to show a defendant’s intent or knowledge or as confessions of past criminal acts. Law Professor Andrea Dennis wrote an article on the phenomenon entitled “Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence,” in which she argues that courts misapprehend the artistic significance of rap lyrics when they treat them as simple admissions of guilt or factual descriptions of a rapper’s life.

Derrion Albert’s death, “Stop Snitching,” and people’s reluctance to talk to police

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Yesterday on CNN, Anderson Cooper reported on the terrible story of 16-year-old Derrion Albert who was beaten to death by four other teenagers in Chicago. The beating was captured on videotape–story here. Four people have been charged so far. Police Superintendant Jody Weis told Cooper that no one has come forward to identify three other potential perpetrators, even though numerous people witnessed the event. Weis stated, “We are literally getting killed by this code of silence, this no-snitching rule. We’ve worked hard to overcome it.” Cooper responded as follows:

This is something we focused on a lot on this program over the years. I did a piece on 60 Minutes about it as well. This whole stop snitching effort, rappers are telling people don’t be a snitch. And now the definition of a snitch is not just somebody who is involved in a crime and tries to rat out someone else they were involved with. Now there’s this horrible definition of being a snitch is anybody who comes forward and talks about a crime they’ve seen. That’s just the mentality that cannot be tolerated.

“Stop snitching” is an important phenomenon in urban criminal law enforcement; it is also deeper than comments like Cooper’s suggest, which is why I devote an entire chapter of the book to it. In a nutshell, “stop snitching” is the legacy of three related trends: drug enforcement’s heavy use of criminal snitches, increased gang violence against witnesses, and decades of mistrust between police and poor minority communities. While it is true that rappers often write songs that say “don’t snitch,” rap music should not be blamed for the fact that law-abiding residents of high-crime inner city neighborhoods are often too afraid of retaliation and/or too wary of police to report crimes. Here is an excerpt from the book:

The “stop snitching” phenomenon turns out to be complex, deep-seated, and long-standing. It did not begin with a DVD or a rap song, nor will it end when “stop snitching” t-shirts go out of style. It is simultaneously a criminal code of the street, a reflection of widespread communal distrust of police, as well as, more recently, a tool of intimidation against civilian witnesses. While the phenomenon was born in the penal system, it has spread beyond its criminal roots, a product of the multifaceted challenges of urban crime, gang violence, race, drugs, and policing through criminal informants.

To explain “stop snitching” is not to condone it–the world would be a better place if Chicago residents had the kind of relationship with police that would promote cooperation and information-sharing. But it is also important to give Chicagoans more credit–like so many people in cities such as Baltimore or Newark or Los Angeles, their reluctance to call police often stems from very real personal as well as historical experiences.

Witness intimidation, secrecy, and the right to a fair trial

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Witness intimidation is a serious problem in many drug and gang-related investigations. When prosecuting certain defendants, the government needs to be able to protect its witnesses from threats and intimidation. At the same time, most defendants pose no threat to witnesses, and defendants are constitutionally entitled to know who will testify against them and to get material evidence about those witnesses. The Court of Appeals of Maryland, the state’s highest or ‘supreme’ court, recently issued a thoughtful decision that highlights many of the tensions inherent in these two competing concerns. In Lancaster v. Maryland, in an armed robbery prosecution, the Court held that the trial judge erroneously permitted the government to withhold the names of key witnesses from the defendants before trial. The Court concluded that the government failed to support its contentions that the witnesses had been threatened or that the jailed defendants posed a substantial threat. The Court wrote:

The State failed to present any evidence regarding specific threats from Lancaster, his brother, or their associates, against the witnesses. No evidence was presented regarding Lancaster’s reputation for violence . . . The state also failed to identify any persons who might have carried out the alleged threats against the witnesses as Lancaster and his brother were incarcerated at the time. . . . We further conclude that the protective order in effect tied defense counsel’s hands and foreclosed him from pursuing a valuable source of information for cross-examination of the State’s witnesses.

The government had withheld the names of four witnesses: two of those witnesses were accomplices in the robbery and received light sentences in exchange for their cooperation, a fact that the defendants did not learn until trial.

By contrast, in Coleman v. State, an earlier Maryland case, the Court concluded that the trial judge properly withheld witness names from the defendants. In Coleman, the defendants were part of a gang that had threatened witnesses, there was evidence of specific threats against witnesses, and the defendants in the case were accused of murder.

The Lancaster and Coleman cases highlight the contextual nature of the problem–in some cases, withholding witness names and other information unfairly prevents defendants from challenging the accusations against them, while in other cases it is a vital precaution. Courts are supposed to carefully evaluate the facts each time. All too often, however, the mere claim that witnesses might be intimidated is persuading courts and other decision-makers to keep information secret, a phenomenon I explore at length in Chapter Four entitled “Secret Justice.” Here’s an excerpt:

Informant practices are inherently secretive: snitches often need their identities protected for safety, while the effectiveness of informant-driven investigations turns on their clandestine nature. But the secretive effects of using informants go far beyond ongoing investigations or protecting particular informants’ identities. Snitching has altered the ways that investigations are conducted and recorded; it affects public record-keeping by police and prosecutors, discovery practices, and what gets written down during plea negotiations. It has also shaped the informational rules prescribed by Supreme Court doctrine, internal judicial branch information policies, and even information-sharing between the Department of Justice and Congress. In other words, the pressure to conceal informant practices broadly affects the criminal system’s culture of record keeping, adversarial information-sharing, public policy and disclosure, making the entire process less transparent and accountable.

Movie Review–The Informant

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In 1992, Mark Whitacre was vice president of operations at agribusiness giant Archer Daniels Midland, handling hundreds of millions of dollars worth of contracts and overseeing the production of lysine, a key corn-based ingredient in animal feed. At the same time, for nearly three years Whitacre worked with the FBI to obtain evidence implicating ADM in a massive international price-fixing scheme. As do most informants, however, Whitacre had issues. He was factually unreliable, personally unstable, and–without giving away the story–engaged in a few shenanigans of his own. The New York Times calls the movie “a smart, cynical comedy” about greed and corporate malfeasance, and it certainly is. But the story of how the federal government came to believe, rely on, adore, distrust, despise, and ultimately discard Whitacre as an informant is also a whirlwind tour through many of the benefits and dangers of real-life informant use.

The Informant, starring Matt Damon, opened this weekend and it is based on Kurt Eichenwald’s best-selling non-fiction book of the same name published in 2000. The book, which weighs in at a whopping 550 pages, is an exhaustively detailed journalistic expose of the seemingly incredible facts of Whitacre’s cooperation with the FBI. While the movie is a comedy, with plenty of chuckles at the topsy-turvy quality of Whitacre’s personality and the resulting ups and downs of the ADM investigation, the book is more disturbing than funny. It offers an up-close view of how heavily the government depended on Whitacre, its inability to control or adjust to his deviations, how ADM’s money and political influence shaped the legal outcomes of the investigation, and how justice got deeply twisted along the way. As a factual matter, the film tracks the book relatively closely, and so while people may leave the movie theater shaking their heads over the craziness of it all, they would do well to take the underlying revelations of the film seriously. The Informant points to some very non-fictional truths about the productive yet dangerous marriage of convenience between the government and its informants. Here are a few take-aways:

Cracking Big Cases. If nothing else, The Informant makes abundantly clear why law enforcement goes through the trouble of cultivating informants: they are often the only way to crack big cases against politically powerful or otherwise hard-to-penetrate organizations such as corrupt corporations, drug rings, or terrorist groups. The FBI’s storied history with its mafia informants is a case in point. On the one hand, informants with names like “Sammy the Bull” Gravano enabled the investigation and prosecution of some of the most powerful mafia figures in history–including John Gotti–and over the years helped the government undermine the power of the mob. On the other hand, the FBI’s habit of letting its informants commit serious crimes like murder, racketeering, and money laundering has given snitching a bad name, and subjected the FBI to heightened scrutiny, congressional disapproval, and millions of dollars in civil liability.

Unreliable. At the end of the movie’s preview, Mark Whitacre casually informs his lawyers (and by implication the audience) that “I haven’t been telling you guys the whole truth.” This might be the biggest understatement of the movie, and it reflects the more general truth that informants are deeply unreliable sources of information. For example, the Center for Wrongful Convictions at Northwestern University Law School reports that 45.9 percent of documented wrongful capital convictions have been traced to false informant testimony, making “snitches the leading cause of wrongful convictions in U.S. capital cases.” Several states, including California, New York, Texas, and Illinois, have considered or implemented new laws to restrict the use of unreliable informant witnesses.

“Falling in Love with Your Rat.” This is how one federal prosecutor in New York describes the fact that law enforcement officials can become so dependent on their informant sources that they develop personal attachments to them and lose their objectivity. This attachment can impede the government’s evaluation the real usefulness or reliability of their long-term sources. Mark Whitacre’s FBI handlers, for example, grew so fond of him that they carried around photos of him and his family–a fondness that eventually blindsided them.

Vulnerable Informants. Like most informants, Mark Whitacre was also a vulnerable person. First and foremost, he was vulnerable to retribution from ADM–the company against which he cooperated. The threat of retribution and potential violence against cooperators is a widespread problem, particularly in gang-related cases. While the federal WITSEC program is well known and well funded, most states have few or no resources to protect or support witnesses who risk their security by cooperating.

Whitacre was also vulnerable in other ways which I won’t disclose, but that, as the book describes in detail, made his FBI handlers very uncomfortable with the eventual resolution of the investigation. While Whitacre was hardly a typical snitch, his predicament reflects the widespread reality that informants, like the criminal justice population more generally, are often vulnerable people: young, frightened, undereducated, suffering from substance abuse or mental health problems. Their weaknesses make them more easily pressured into cooperating, and less able to make self-protective decisions, and the criminal system has almost no mechanisms to protect them. In recognition of this fact, Florida recently passed first-of-its-kind legislation entitled “Rachel’s Law” (see previous post) which extends some much-needed protections to people who become informants.

In the end, The Informant is plain old good entertainment. But it also provides an accurate glimpse into the machinations of criminal justice, a drama that seems “unbelievable” even though it is all too real.

The Informant is rated R for occasional foul language.