Snitching

Criminal Informant Law, Policy, and Research

Jailhouse Informants

Refusing to snitch

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The Marshall Project has published this remarkable story about George Hall who refused to serve as a jailhouse informant against David Wood. David Wood is on death row and is scheduled to be executed next month in Texas.

Hall, Wood, and two other men were all incarcerated together back in 1990. According to Hall, Hall and the two other men were offered deals by Texas law enforcement to testify falsely against Wood. Hall refused; the other men agreed and helped convict Wood. From the story:

“As Hall tells it, several El Paso detectives took the three men, without handcuffs, to a hamburger joint and a police station, seating them in a room with photographs of the victims, a large coffee pot, cigarettes and snacks. They handed the men case files with crime scene photos and interview notes with other witnesses, Hall said. “David Wood is our suspect,” he recalls the detectives saying. “It’d be best if you tell us something, because we can’t let this guy walk.” Plus, there was reward money for people who helped them.”

Stories like Hall’s are rare for a number of reasons. The government only rewards inculpatory evidence — evidence that builds the state’s cases and makes defendants look guilty — not evidence that might help exonerate a defendant. Conversely, defendants can’t offer leniency at all, and offering money or a reward looks like witness tampering. Which means that all the incentives run in one direction, towards snitching for the prosecution and away from contradicting the government’s story. When someone like Hall refuses to snitch, moreover, they will not be called as a witness by the government, which means the defense might never learn about them. And coming forward like Hall did can be risky for people facing their own criminal cases: they run the risk of law enforcement disfavor or even retaliation. (This reality sits in considerable tension with the Second Circuit’s holding that prisoners have a First Amendment right against being forced to act as an informant.)

For all these kinds of reasons, when people refuse to snitch, we are unlikely to learn about it, which makes this particular story even more revealing. Story here: He Refused to Become a Jailhouse Snitch. Can He Stop David Wood’s Execution?

Mass. Supreme Court orders comprehensive jury instructions for all jailhouse informants

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The Supreme Judicial Court (SJC) issued an opinion today requiring that juries be given comprehensive, detailed, cautionary instructions whenever the government calls an incarcerated informant as a witness, regardless of whether the informant is testifying pursuant to a cooperation deal. The Massachusetts high court also affirmed the general admissibility of defense expert testimony at trial “discussing the research regarding the unreliability of incarcerated informant testimony.” The SJC is following in the footsteps of Connecticut which has long required special cautionary jury instructions regarding informant testimony, and whose Supreme Court decided in State v. Leniart (2020) that defense expert testimony regarding informants is admissible. Here is a link to the SJC decision Commonwealth v. Lacrosse. Some excerpts from the SJC opinion:

We begin by acknowledging that the defendant raises legitimate concerns about the reliability of the testimony of incarcerated informants. . . . [W]e are persuaded that a more comprehensive and specific instruction directed at all incarcerated informant testimony, regardless of whether the incarcerated informant is testifying pursuant to a cooperation agreement, would be beneficial in future cases. . . .

Indeed, we have [] modified the Connecticut instruction to direct juries to consider how incarcerated informants may have accessed the information apart from a confession by the defendant, such as through access to the defendant’s discovery materials or media accounts of the crime.

Defense counsel may also, of course, present expert witness testimony discussing the research regarding the unreliability of incarcerated informant testimony so long as the requirements of Daubert-Lanigan are satisfied for such testimony. See State v. Leniart, 333 Conn. 88, 144 (2019) (expert testimony on “the general characteristics of the marketplace for criminal informant testimony and the academic research indicating that unreliable informant testimony contributes to many wrongful convictions” admissible so long as it satisfies other requirements for expert testimony).

For a more detailed explanation of why juries need expert help assessing jailhouse informants, see this explainer in The Appeal.

Los Angeles sheriffs hid FBI informant from the FBI

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Back in 2011, the FBI was investigating misconduct, abuse, and corruption in the Los Angeles County Sheriff’s Department headed by Sheriff Lee Baca and Under-Sheriff Paul Tanaka. During a medical transport, sheriffs discovered that one of the people in custody in the LA County jail, Anthony Brown, was acting as an FBI informant and reporting information about sheriff misconduct including the use of excessive force and bribery. In response, Tanaka oversaw a plan to hide Brown from the FBI. From the Los Angeles Magazine series on the scandal:

[In August, 2011], LASD management set into motion its most elaborate strategy: They would hide Brown from his FBI contacts, members of the U.S. Attorney’s office, and any other federal personnel who might try to find him until the inmate revealed to the LASD what he’d been telling the feds. Brown would be bounced into and out of various locations within the county jail system as LASD deputies used a byzantine stratagem of rebooking him every 48 hours under a new name, inmate number, and physical descriptors to game the system’s computer database so as to leave no digital bread crumbs. Finally, as part of their effort to get the inmate to disclose everything he knew, [the] team told Brown that he would not hear from the FBI again, that his handlers had abandoned him.

Baca and Tanaka were both eventually convicted of felony obstruction of justice in connection with the scandal. Brown received a $1 million settlement from the county for his civil rights lawsuit for abuse and failure to provide medical care.

Deep dive into informant practices in Cincinnati

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According to a recently released year-long investigation by the Cincinnati Enquirer, local police and prosecutors quietly used informants in dozens of homicide cases, many of which later fell apart. See Enquirer investigation: Cincinnati homicide cases unravel after deals with informants. Here’s just one example from the article:

Before his violent death in 2012 – prosecutors say he was shot for “being a snitch” – [Quincy] Jones became a prolific police informant, joining a network of informants and cooperating witnesses who for years helped Cincinnati law enforcement close homicide cases. The informants sometimes testified in multiple cases and, like Jones, worked with detectives and prosecutors who vouched for their reliability. But an Enquirer investigation found several of those cases later unraveled, raising the possibility that unreliable informants helped send innocent people to prison and allowed others to get away with murder.

Jones began cooperating in 2008 when he was charged with multiple murders. He fled to Seattle; when he was brought back to Cincinnati he met with Police Detective John Horn and offered to cooperate. As the article describes it, “On the day Jones signed the deal, prosecutors dropped one of the murder charges against him and reduced the other to involuntary manslaughter. [] Judge Beth Myers then sentenced him to four years in prison, far less than the 20 years to life he would have faced with a murder conviction.” Two years later Jones cut another deal which permitted him to walk free in 2010.

The article also reveals the kinds of sleight-of-hand used to conceal informant deals from defendants, courts, and the public:

Because [Jones’s] deal was confidential, defense attorneys, judges and juries in future cases wouldn’t know its terms. They also wouldn’t know that if Jones went back on the deal, all the original charges, including a possible life sentence, could be reinstated. Of the 12 homicide cases Jones cooperated on, The Enquirer found, he testified in court about at least five. Each time, Jones said he’d been promised nothing in exchange for his testimony. 

According to his written plea deal, that was true. Because the agreement didn’t identify specific cases, Jones could say his testimony in those cases wasn’t connected to his plea deal. 

[Detective] Horn, who is now retired, said that’s a common arrangement. “You haven’t done anything for me until, you know, you do something for me,” Horn said. “There’s never been any promises made.” 

Paying jailhouse snitches with conjugal visits

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A Miami prosecutor has resigned from a death penalty case after Judge Andrea Ricker Wolfson found evidence of various types of “witness testimony manipulation” and “severe recklessness” by prosecutors stretching back decades. AP story here: Veteran Miami prosecutor quits after judge’s rebuke over conjugal visits for jailhouse informants, and ABA Journal story here.

As I have written many times, there are almost no limits on the kinds of rewards that the government can offer an informant in exchange for information. Typically it is the failure to disclose the benefits, not the propriety of offering the benefits themselves, that constitutes prosecutorial misconduct.