The Kansas Death Penalty Defense Unit recently filed this motion asking the court to take protective measures to prevent jailhouse snitches from being created in the case of Kansas v. Adam Longoria. Asserting that “Mr. Longoria has no intention of talking to anyone but his attorneys about the facts of this case,” the motion requests that the court “take measures to ensure that no jailhouse snitches or other suspect informants are created in this case to manufacture evidence for the state.” This proactive defense tactic appears to be getting more common (see previous post: Interesting effort to preempt jailhouse snitching).
Informant Law
Interesting effort to preempt jailhouse snitching
Since everyone in the criminal system knows that high-profile murder suspects are prime targets for jailhouse snitches, why not try to nip it in the bud? That’s what one Arizona public defender tried to do, asking the judge to keep other inmates away from his client Pamela Phillips if those other inmates were also represented by the public defender’s office. Were such inmates to come forward as snitch witnesses, it would create a conflict and the public defender’s office could no longer represent Phillips. Story here: Pre-emptive anti-snitch move fails. The judge denied the motion, but its a good example of proactive lawyering that builds on our growing knowledge of how jailhouse informants operate.
At least five imprisoned based on lying drug informant
Watch this video news clip from WINK-TV News (an ABC affiliate) in Florida: “Convicted felon: lying confidential informant sent me to prison.” The informant, Shakira Redding, admitted that she set up innocent people by fabricating drug deals: she’d buy drugs in advance and hide them on her body to provide to the drug task force as “evidence” after the alleged deals. The government had promised her money, a home, and custody of her children if she provided incriminating evidence against others. Romill Blandin was one of Redding’s innocent targets who spent 20 months in prison after Redding made a video of a man in a car that she claimed was Blandin, and then picked Blandin out of a line-up. Tellingly, Blandin never saw the video before he pled guilty–his public defender told him that he couldn’t see it unless he went to trial and that his criminal record made it likely that the jury would convict him. He chose to plead guilty instead of risking a longer sentence.
This story is an almost exact replay of the Hearne, Texas debacle in which a confidential informant working for the local drug task force set up dozens of innocent African Americans. The Hearne case was the subject of the movie “American Violet,” and an ACLU lawsuit. Here’s the description from the book’s introduction:
In the economically troubled town of Hearne, Texas, 27-year-old criminal informant Derrick Megress wreaked havoc. In November, 2000, a federally-funded drug task force swept through the town arresting twenty-eight people, mostly residents of the Columbus Village public housing project. Megress, a suicidal former drug dealer on probation facing new burglary charges, had cut a deal with the local prosecutor. If he produced at least 20 arrests, Megress’s new charges would be dropped. He’d also earn $100 for every person he helped bust. One of his innocent victims was waitress Regina Kelly, mother of four, who steadfastly refused to plead guilty and take a deal for probation even as she sat in jail for weeks. Another target, Detra Tindle, was actually in the hospital giving birth at the time that Megress alleged that she had sold him drugs. A lie detector test finally revealed that Megress had lied–mixing flour and baking soda with small amounts of cocaine to fabricate evidence of drug deals. Charges against the remaining Hearne suspects were dropped, although several had already pleaded guilty.
Such stories are not aberrations; drug task forces are large-scale users of criminal informants in which the risks of fabrication are high. Massachusetts, for example, reports that in 2005-2006 its federally-funded drug taskforces relied on over 2000 confidential informants who made 45 percent of the taskforces’ controlled buys.
MySpace anti-snitch comment treated as threat
An appellate court in Maryland has ruled that a comment on the defendant’s girlfriend’s MySpace page was properly admitted at his murder trial. The comment read: “Free Boozy!!! Just remember snitches get stitches!! U know who you are!!” Daily Record story here. The comment was proffered by the government to explain why a key witness had failed to identify the defendant at a previous trial. The decision is significant for a number of reasons. For example, it shows how comments made on social networking sites by friends and family may be admissible against defendants. It also elevates common phrases such as “snitches get stitches” and “no snitching” and potentially even rap lyrics to the status of specific threat. For a more general discussion of the use of rap lyrics against defendants, see this post: “”Stop Snitching” rap song on YouTube leads to convictions.”
Attorney General Holder memo on prosecutorial charging decisions
Thanks to Sentencing Law and Policy for making Attorney General Eric Holder’s new charging policy memo available here. The blog discusses reactions to Holder’s new guidelines, which are described as providing more flexibility to prosecutors not to argue for mandatory minimum sentences. Of note for this blog’s purposes, Holder’s memo reiterates DOJ’s practice of considering a defendant’s cooperation during the initial charging decision. As the memo states: “In all cases, the charges should fairly represent the defendant’s criminal conduct, and due consideration should be given to the defendant’s substantial assistance in an investigation or prosecution.” As I’ve argued elsewhere, this practice of charge reduction for cooperation is central to the pervasiveness and secrecy of the snitching process: a cooperating suspect will be charged differently, or perhaps not at all, in ways that may leave no paper trail. The U.S. Sentencing Commission keeps track of cooperation departures at sentencing, but charging decisions take place long before a defendant ever comes before a judge to be sentenced.
One consequence of this practice is that cooperation has become a large source of sentencing disparity, the very problem the Sentencing Guidelines were designed to alleviate. For example, an article in the June edition of Justice Quarterly concludes that substantial assistance downward departures are a significant source of inter-judge disparity: “the sentencing discounts that similarly situated defendants get for providing substantial assistance vary upon the judge handling the case,” making substantial assistance departure decisions “a wellspring of sentencing disparity.” Amy Anderson & Cassia Spohn, Lawlessness in the Federal Sentencing Process: A Test for Uniformity and Consistency in Sentence Outcomes, 27 Justice Quarterly 362 (2010). An earlier Sentencing Commission study found that prosecutorial offices reward cooperation very differently as well. In other words, the uniformity offered by determinate sentencing schemes–treating similarly situated offenders similarly– does not cure the significant disparities introduced by unregulated cooperation.