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.”
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.
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.
Huffington Post offers this comprehensive retelling of the entire Orange County snitch scandal, from the first revelations all the way to Scott Dekraai’s 8 life sentences, with reactions from the victims’ families: A Mass Shooting Tore Their Lives Apart. A Corruption Scandal Crushed Their Hopes For Justice.
At the recommendation of the Timothy Cole Commission, Texas has passed strong new legislation requiring the government to collect a range of data on its jailhouse informants, including prior testimony and benefits, and to turn that data over to the defense. The bill is here.
And here is the New York Times Editorial Board’s glowing review of the new law, Texas Cracks Down on the Market for Jailhouse Snitches, calling it “the most comprehensive effort yet to rein in the dangers of transactional snitching.” The Times also notes, however, that prosecutors are supposed to turn over such evidence anyway and that further reforms are called for, such as reliability hearings and barring informants in capital cases.