Snitching

Criminal Informant Law, Policy, and Research

Prosecutors

Orange County snitch scandal still isn’t over

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It began back in 2012, when public defender Scott Sanders started uncovering unconstitutional informant use in the Orange County jail and widespread law enforcement practices designed to cover them up. Dozens of cases were compromised, including homicide cases, due to prosecutorial misconduct. The US Department of Justice conducted a six-year investigation. Now Sanders has filed a new motion detailing many more cases that may have been compromised. From the LAist:

“On top of the cases already impacted by the snitch scandal’s long reach, Sanders outlined dozens more cases in a recent court filing that could be revisited because of new evidence of potential misconduct. That misconduct, Sanders alleges, was carried out by O.C. law enforcement officers and a former top prosecutor who is now a superior court judge.”

For years, Sanders and the Orange County Public Defender office have been the prime drivers for uncovering informant misuse and official nondisclosure. As Maurice Possley of the National Registry of Exonerations points out, “we don’t really know how common it is for law enforcement officials and prosecutors to withhold evidence because it’s a ‘”‘hidden crime.'”

Empirical study on federal drug cooperation

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Interesting new law review article on how federal defense attorneys (mostly CJA panel attorneys) perceive cooperation rates and opportunities for their (mostly) drug clients: Why Criminal Defendants Cooperate: The Defense Attorney’s Perspective. The authors surveyed defense counsel in three large federal districts (SDNY, EDPA, EDVA) and found, unsurprisingly, that cooperation is largely driven by the promise of sentencing benefits — precisely what federal mandatory minimums and the US Sentencing Guidelines are designed to do.

Perhaps more surprisingly, when the authors asked defense attorneys whether “cooperation agreements are the product of a fair process,” on a scale from 1 (completely disagree) to 9 (completely agree), the “average rating [was] 3.17. Such a low average indicates that federal defense attorneys who participated in this study felt that cooperation agreements are not the product of a fair process.” Even former prosecutors in the sample only gave the process 4 out of 9 for fairness. Recall that this study was performed in one of the most regulated, transparent, and lawyered arenas of cooperation: by hypothesis all the defendants in these cases were represented by experienced counsel who negotiated formal cooperation deals on their behalf in the relatively well-resourced elite space of the federal judiciary. Just imagine how much more unfair the cooperation process gets where police and prosecutors pressure vulnerable, unrepresented suspects to cooperate informally. For some particularly egregious examples, see this prior post: How police turn teens into informants.

New Jersey AG issues jailhouse informant directive

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The New Jersey Attorney General issued Directive 2020-11 which requires all state prosecutors to seek supervisory approval before using jailhouse informants. That approval process requires, among other things, the collection of comprehensive information regarding the proposed informant witness. Supervisors must satisfy themselves that prosecutors have met their discovery obligations, and that “there is independent, credible evidence corroborating the informant’s testimony.”

Former police chief and prosecutor on the dangers of snitching in USA Today

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Here is an important op-ed in USA Today from Miriam Krinsky and Ronal Serpas: “Stop letting prosecutors get away with threatening murder.” They chronicle the misuse of informants by law enforcment in Orange County and across the country.  About Orange Country, they write:

“Prosecutors used informants to do what would have been illegal for them to do directly — question individuals awaiting trial without their lawyer present and, even worse, use threats of murder and violence to coerce confessions. . . . These practices fly in the face of the fundamental duty of prosecutors: to seek truth and pursue justice.”

Krinsky is a former federal prosecutor and now the Executive Director of Fair and Just Prosecution.  Serpas is former Chief of Police for New Orleans and now Professor of Criminology at Loyola University.

Snitches snitching on snitches

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I write critically about criminal informants, but it bears remembering how they enabled the FBI to break the mafia.  In June, mob boss “Cadillac Frank” Salemme was convicted of ordering the murder of a witness.  Key witnesses against Salemme included Stephen “Rifleman” Flemmi, infamous killer informant in his own right who avoided the death penalty by testifying against Salemme and others. Salemme himself had been living under federal witness protection for having testified for the government over a decade ago.  As one lawyer commented about the old mafia leadership, “Everybody’s been burned to a crisp here by informants.”

Whether it’s good public policy to cut deals with murderers in order to go after other murderers is a subject of long debate. At least some in Congress didn’t think so–see this report: Everything Secret Degenerates: the FBI’s Use of Murderers as Informants.  It is now a violation of Department of Justice guidelines for the FBI to permit one of its informants to commit a violent crime, but violent criminals get leniency all the time in exchange for cooperation.