Last week the Supreme Court heard oral argument in an important snitching case: Pottawattamie County v. McGhee. Two prosecutors are being sued for fabricating evidence — essentially pressuring a criminal informant until he came up with the story they wanted and then using that story at trial. The issue is whether they have absolute immunity, as prosecutors typically do for trial-related decisions, or whether they were acting more like investigators and therefore would only have qualified immunity from suit. Radley Balko over at Reason has posted this comprehensive discussion of the case and oral argument. For defendants who have been convicted based on fabricated evidence, the only remedy to which they are typically entitled is the overturning of their conviction. See this post: Judge finds prosecutorial misconduct in permitting false informant testimony. A finding that prosecutors who fabricate evidence might be personally liable would significantly alter the dynamic between informants and the government.
Informant Law
Federal rewards for prison snitches
The federal rules of criminal procedure have special re-sentencing provisions for informants who provide information after they have already started serving their sentences. Rule 35(b)(2) permits a court to reduce a prisoner’s sentence if the government asks the court to do so more than one year after sentencing. Rule 35(b)(1) governs such requests made less than a year after sentencing. Approximately 1,700 federal prisoners got such sentence reductions in fiscal year 2008. At least one federal judge, Judge Tucker Melancon (D-LA), has complained that inviting inmates to provide information while they are in prison is an invitation to fabrication. See post: Professional prison snitch ring.
Last month, the Seventh Circuit issued an opinion interpreting Rule 35(b)(2). In U.S. v. Shelby, the court held that a district judge contemplating a motion for a sentence reduction can only reduce the sentence based on the extent of the defendant’s cooperation, and not on the more general sentencing factors contained in 18 U.S.C. 3553(a) which judges are required to consider when initially sentencing defendants. By contrast, the Sixth Circuit has held that judges can consider 3553(a)’s general sentencing factors–which include things such as a defendant’s likelihood of rehabilitation, prior criminal record, and other personal history–when resentencing under 35(b)(2).
This may seem like an esoteric point, but it is important for several reasons. First, it affects thousands of sentences each year. Second, judges can consider the 3553(a) factors in refusing to reduce a cooperator’s sentence; they just can’t consider those factors if they want to lower the sentence. The Sixth Circuit deemed this to be an unfair “one-way rachet”–the Seventh Circuit didn’t. Shelby also resists the general tide of recent federal case law that favors judicial discretion, since United States v. Booker restored sentencing discretion to federal judges. (See Sentencing Law and Policy blog for detailed discussions of Booker-related developments.) The Seventh Circuit, and other circuits that agree with it, have curtailed that discretion when it comes to rewarding post-sentence cooperation.
Finally, this case is a reminder of how central snitching is to federal criminal law. With the abolition of parole, federal offenders are required to serve nearly their entire sentences, regardless of their conduct in prison, further education, or other rehabilitation. As this case makes case abundantly clear, the only chance they have to earn early release is to give information to the government.
Of Insider-Trading, Informants,and Wiretaps
“Wall Street Meets the ‘Wire,’” is a post from earlier this week on White Collar Crime Prof Blog, discussing the criminal case against billionaire hedge-fund manager Raj Rajaratnam for insider-trading. Here’s a link to the news story on Bloomberg. The post focuses on the unusually aggressive use of wiretaps in the investigation, and asks whether the government was authorized under the federal wiretap statute to do so given the availability of cooperating informants. As the post explains:
Title 18 U.S.C. § 2518(3)(c) provides that a court issuing a wiretap authorization order must determine whether normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. This “necessity requirement” obligates the government to set forth a full and complete statement of specific circumstances explaining why traditional investigative techniques were insufficient or the application must be denied. In determining the sufficiency of an affidavit, a reviewing court must ensure that the issuing court properly performed [its] function and did not ‘serve merely as a rubber stamp for the police’. The government is not under an obligation to exhaust all alternative means of investigation in satisfying the necessity requirement but, neither should it be able to ignore avenues of investigation that appear both fruitful and cost-effective.
Given that the government had three co-conspirators, including one as early as January 2006, acting as informants and cooperating witnesses, and that these individuals had unfettered access to Rajaratnam and others involved in the alleged conspiracies, the question arises whether the government deliberately stalled this investigation and actively resisted utilizing normal investigative techniques, hoping to induce the court into believing that only a wiretap could succeed.
The post doesn’t mention it, but the government need not even get court permission for electronic surveillance if it has so-called “third party consent,” i.e. if the informant agrees to record the conversation. 18 U.S.C. § 2511(2)(c).
This story illustrates the intimate legal relationship between informants and other forms of surveillance. The law privileges informant use, forcing the government to justify its use of wiretaps if informants are available–note that the post refers to snitching as a “normal investigative technique.” Moreover, the law permits the government to circumvent the courts entirely and avoid asking for permission to record conversations if it can find an informant who will agree to the surveillance. The usual explanation for this hierarchy is that electronic surveillance is one of the most intrusive forms of investigation and therefore should be a means of last resort. Wiretapping is of course supremely invasive, but this fact obscures the fact that informant use can be similarly intrusive, i.e. when the government threatens friends and colleagues with criminal charges to get them to report on and record people they know. For those who are interested, Chapter Two of the book discusses informant law in detail.
The insider-trading story also hints at important differences between white collar and street/drug crime investigative tactics involving snitching. The culture of informant use is very different in these two realms: white collar informants tend to be (although not always) well controlled, represented by counsel, and provide information about past crimes, whereas drug informants tend to be poorly controlled, unrepresented, and permitted to engage in new criminal activity in order to generate evidence. At the same time, the two arenas share important features. Here’s an excerpt from Chapter Seven:
White collar informing shares important characteristics with its street counterpart. Both confer a vast amount of discretionary, unreviewable authority on law enforcement. Both exacerbate power inequalities among potential offenders, as well as between vulnerable offenders and the government. In both arenas, the decision to permit cooperation means that the government is tolerating and forgiving crime, and sometimes even creating an atmosphere in which crime may flourish. And both deprive courts, and thus the public, of significant amounts of power over and information about the operations of the executive.
As informant use becomes increasingly prevalent in white collar investigations, we should expect to see more of the problems of unreliability and continued criminality that have become familiar in the street crime arena. See previous post: Committing Crime While Working for the Government.
British “stop snitching” rap song on YouTube leads to convictions
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.
Witness intimidation, secrecy, and the right to a fair trial
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.