Snitching

Criminal Informant Law, Policy, and Research

Drug-related

Report: Confidential Informants in New Jersey

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It’s rare to get this much data about informant practices. The New Jersey ACLU has released this important study of confidential informant practices across the state, based on scores of documents, cases, interviews, and government policies. According to the study,

The use of informants in drug law enforcement in New Jersey was found to be largely informal, undocumented, and unsupervised, and therefore vulnerable to error and corruption.

Among many findings, the study determined that informant use led to the following problems: manufactured criminal conduct, financial abuse, police coersion, harm to the informants, unreliability, misuse of juveniles, using “big fish” to catch “little fish,” and the widespread violation of laws and guidelines. The study proposes reforms, and apparently a number of New Jersey counties have already responded with improved policies.

A Rat’s Life: MS-13 Snitches Run Wild

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Another great story this week in SF Weekly, A Rat’s Life: MS-13 Snitches Run Wild While Turning State’s Evidence by Lauren Smiley. The subheading reads: “To bring down the infamous MS-13 gang, the government recruited and perhaps enabled the gangsters themselves.” The story details the career of MS-13 gang member and ICE informant “Bad Boy,” who appears to have intentionally racheted up the violence and gang activities of the 20th Street Clique–including recruiting and tatooing young new members–in order to help the government make cases. Due to Bad Boy and several other informants, this gang RICO case is riddled with snitch problems. From the story:

In a triumphant press conference held by federal officials and then-U.S. Attorney Joe Russoniello about the takedown, Bad Boy didn’t get a mention. Nor did Jaime “Mickey” Martinez, a former gang leader who would later testify to participating in car thefts and a shooting during his time as a government snitch. Federal law enforcement didn’t mention paying these informants thousands of dollars, relocating their families, or letting them stay in the country and giving them work permits.

No wonder: The informants are becoming an increasing liability. One defendant claims he was arrested for committing the crimes he was supposedly informing about, and is now suing the city and his federal handlers. As seven defendants started a trial this month facing sentences of up to life in prison, defense attorneys are claiming entrapment. “The government created much of the violence,” Martin Sabelli said in his opening statements. “The prosecution went awry and [my client] was induced, cajoled, and pressured to commit crimes he was not otherwise predisposed to commit,” said Lupe Martinez.

This case is unusual in another way. Although the government almost never brings perjury charges against its own informant witnesses, Bad Boy is being charged with making false statements to the government for failing to disclose all of his own past crimes. Ironically, this is a good sign, since at a fundamental level it is up to the government to police the reliability of its own informants.

FOX on the informant market

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Here’s a general story that ran yesterday on FOX in Memphis, Tennessee– Informants Cashing in on Snitching. The piece focuses on informants, particularly drug informants, who earn money as well as leniency for their own offenses, and it highlights the informality and lack of rules that characterize the world of paid criminal snitching. From the story:

“Most of the informants we develop, are involved in criminal activity. You get your best information from people who have knowledge of the crimes or are being involved in committing the crimes,” said [Sgt. Clay] Aitken [of the Shelby County Sheriff’s Office.] Records on the number of informants and what they’re paid is not made public by the sheriff’s office. Aitken says informants are paid with seized drug money, not taxpayers’ dollars. “I’ve seen informants get paid anywhere from $50 to thousands of dollars. But there’s no set rate or set fee,” said Aitken.

One of [the reporter’s] law enforcement sources who has worked directly with informants, says he’s personally seen a Mid-South informant get handed $50,000 cash for one tip that led to a huge drug bust but that’s nothing compared to what the Feds can offer and he says informants have been known to shop their information around selling it to the highest bidder.

David Headley: another drug/terrorism informant works both sides

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According to the New York Times, David Headley, drug-dealer-turned-informant-turned-terrorist, was working for the DEA while collaborating with Pakistani terrorists who eventually attacked Mumbai, India in 2008. Headley has pleaded guilty to his role in that attack, and is currently cooperating with the government in an effort to avoid the death penalty. Story here: DEA Deployed Mumbai Plotter Despite Warning. Part of India’s anger over the incident stems from the fact that the DEA had been warned repeatedly by several people who knew Headley that he sympathized with terrorist groups, but, ignoring the warnings, the DEA nevertheless persuaded a court to take Headley off probation and sent him to Pakistan in 2001. From the Times:

In recent weeks, United States government officials have begun to acknowledge that Mr. Headley’s path from American informant to transnational terrorist illustrates the breakdowns and miscommunications that have bedeviled them since the Sept. 11 attacks. Warnings about his radicalism were apparently not shared with the drug agency that made use of his ties in Pakistan.

The director of national intelligence, James R. Clapper Jr., began an investigation into Mr. Headley’s government connections after reports last month that two of the former drug dealer’s ex-wives had gone to American authorities between 2005 and 2008, before the Mumbai attacks, to say they feared he was plotting with terrorists. Combined with the earlier warning from the former girlfriend, three of the women in Mr. Headley’s life reported his ties to terrorists, only to have those warnings dismissed.

An examination of Mr. Headley’s story shows that his government ties ran far deeper and longer than previously known. One senior American official knowledgeable about the case said he believed that Mr. Headley was a D.E.A. informant until at least 2003, meaning that he was talking to American agencies even as he was learning to deal with explosives and small arms in terrorist training camps.

An NPR story this morning explains the breakdown in official communication by noting that the DEA would have been protective of its informant and unlikely to share his identity with other agencies, Warnings Overlooked in Case of American Tied to Mumbai Attacks. But this is only part of the story. As the Times points out, the DEA ignored the warnings precisely because Headley was a long time and valuable informant. This is the same blindspot that earlier this year led CIA officials to bring a prized informant to a base in Afghanistan, only to see him turn suicide bomber — see Afghan suicide bomber was informant-double-agent.

This debacle illustrates the significant costs of the criminal informant compromise. First, informants avoid punishment for their own crimes–Headley served less than two years in prison although he could have faced up to nine years for distributing 15 kilograms of heroin. Second, as the government grows increasingly reliant on its criminal sources, officials come to tolerate informant crime, double-dealing and inaccuracy as a routine part of the compromise. Because the dominant culture of informant management is one of secrecy, even as between government agencies, this further weakens the process of intelligence-gathering, information-sharing, and law enforcement. Since the government maintains that it cannot conduct the war on terror without informants, it is time to rethink the rules of this risky public policy.

Texas requires corroboration for informant witnesses

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Perhaps as a result of these sorts of debacles, Infamous fake drug scandal in Dallas, Of Experts and Snitches, Texas has passed some good corroboration legislation restricting the use of drug informants and jailhouse snitches. Last year, it passed this law requiring corroboration for jailhouse snitches:

A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code. Crim. Pro. art. 38-075

Article 38-141 similarly requires corroboration before a drug informant can testify. These are steps in the right direction, although they are only partial solutions to the lying snitch problem. The key to informant unreliability is not whether the informant is involved in drugs or in jail, but whether he expects a benefit and therefore has a motivation to lie. Nebraska takes the right approach in this regard by defining “informant” to include “any criminal suspect, whether or not he is detained or incarcerated, who received a deal, promise, inducement or benefit.” Neb. Rev. Stat. 29-1929. In defining informant broadly, the Nebraska legislature reasoned that “there is a compelling state interest in providing safeguards against the admission of testimony the reliability of which may be or has been compromised through improper inducements.”