Snitching

Criminal Informant Law, Policy, and Research

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Troy Davis Gets a Hearing–Recantation Redux

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I posted the other day about how hard it is for defendants to get new trials when the witnesses against them have recanted. Yesterday, the Supreme Court took the unusual step of granting death row inmate Troy Davis a new hearing. Of the nine witnesses who testified that Davis shot and killed Officer Mark MacPhail in 1989, seven have recanted. Of the remaining two witnesses, one–Red Coles–is suspected of being the actual shooter. Here’s the NYT story .

While the Davis case is not ostensibly about snitching, it revolves around some classic dynamics associated with informant use and its unreliability. One recanting witness–Kevin McQueen–was in fact a jailhouse snitch who testified that Davis confessed to him. McQueen had worked several times before as a police informant and knew the value of providing information against other inmates. When Queen recanted, he explained that he had fabricated the confession based on jailhouse gossip and television reports. Here’s the excerpt from the original appeals brief:

Ex-inmate Kevin McQueen testified at Davis’ trial that Troy had confessed to him. McQueen had been a “snitch” in other prosecutions and his version of Troy’s “confession” differed wildly from established facts (e.g. Troy was eating breakfast at the Burger King in the morning). McQueen subsequently admitted, “[t]he truth is that Troy never confessed to me or talked to me about the shooting of the police officer. I made up the confession from information I had heard on TV. and from other inmate’s talk about the crimes. Troy did not tell me any of this.”

This tactic of fabricating other inmates’ confessions based on jailhouse talk and publicly available information was made famous by Leslie Vernon White, a Los Angeles jailhouse snitch. In 1989, White went on 60 Minutes and showed reporters how with a few phone calls from the jail he could get enough information to fabricate a confession that police and prosecutors would accept as true. The ensuing Los Angeles Grand Jury Investigation (link to the left) was a response to the White revelations.

Another important aspect of the Davis case that commonly occurs in informant cases is the “first-in-the-door” phenomenon, in which the first suspect to cooperate with police not only gets to direct attention away from himself but can fundamentally shape the official investigation. Red Coles is the man who several witnesses now identify as the real shooter. The day after the shooting, Coles and his attorney went to police and fingered Davis as the shooter–Coles became a witness against Davis at trial. As a result of Coles’s cooperation, police resources were directed at Davis. This happens all the time with informants, especially in complex fraud or drug cases–the first suspects to cooperate shape the entire investigation and make it more difficult to discover the truth. Former prosecutor Steven Cohen describes what happens when the government believes a witness who cooperates early:

It is a certainty that the information obtained from the cooperator will become part of the base of information utilized to evaluate future would-be cooperators. Moreover, the information will affect future questioning of witnesses and defendants; it will alter how investigators view the significance of witnesses and particular pieces of evidence; and it may taint the way the case is perceived by the prosecutors and agents. In other words, false information skews the ongoing investigation. The false information may prove critical to issues that have far greater import than whether to accept as true the proffer of another would-be cooperator. Rather, it might impact decisions regarding charges to be filed against other defendants, it might affect decisions related to an appropriate plea for a given defendant, and it might even influence whether the government decides to seek the death penalty. (Steven M. Cohen, “What is True? Perspectives of a Former Prosecutor,” 23 Cardozo L. Rev. 817, 825 (2002)).

Informants Killing Informants

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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.

In the News–Recantation

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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.