The U.S. Department of Justice has announced an investigation–in conjunction with the U.S. Attorney’s Office of the Central District of California–into unconstitutional informant practices in Orange County. This is a welcome and important development. Below are links to stories, and to the original letter from former California Attorney General John Van de Kamp and U.C. Irvine Dean Erwin Chemerinsky, requesting that DOJ intervene:
Reliability
DOJ audit of DEA confidential source program
The U.S. Department of Justice Office of the Inspector General has just released this audit of the DEA’s Confidential Source Program. In a rare glimpse into the scope and scale of informant deployment, the audit states: “Between October 1, 2010, and September 30, 2015, the DEA had over 18,000 active confidential sources assigned to its domestic offices, with over 9,000 of those sources receiving approximately $237 million in payments.”
The audit was critical of the DEA. Here are a few excerpts:
- “[W]hile DEA policy prohibits paying deactivated sources who were deactivated because of an arrest warrant or for committing a serious offense, we found two concerning instances of payments to previously-deactivated sources. In one case, the DEA reactivated a confidential source who previously provided false testimony in trials and depositions. During the approximate 5-year period of reactivation, this source was used by 13 DEA field offices and paid $469,158. More than $61,000 of the $469,158 was paid after this source was once again deactivated for making false statements to a prosecutor. . . . [W]e estimated the DEA may have paid about $9.4 million to more than 800 deactivated sources between fiscal years (FY) 2011 and 2015.”
- “[W]e were extremely concerned to discover the DEA condoned its confidential sources’ use of “sub-sources,” who are individuals a source recruits and pays to perform activities or provide information related to the source’s work for the DEA. During our review of DEA files, we found evidence of sources who were paid based, in part, on the need to pay “sub-sources,” but the information in the files was insufficient to allow us to determine the full extent of such payments.”
- “[W]hen we asked the DEA Intelligence Division to provide us with an itemized list and overall total of payments to intelligence-related confidential sources, it was unable to do so. We reviewed DEA records and estimated that, during the 5-year period of our review, the Intelligence Division paid more than $30 million to sources who provided narcotics-related intelligence and contributed to law enforcement operations, $25 million of which went to just 9 sources. Additionally, we identified one source who was paid over $30 million during a 30-year period, some of it in cash payments of more than $400,000. We concluded the Intelligence Division’s management and oversight of its sources was not commensurate with the large amount of payments it made to them.”
Informant expert testimony held admissible in Connecticut
The Connecticut Appellate Court has held that expert testimony on the general unreliability of jailhouse informants is admissible, and that a trial court abused its discretion when it excluded a defense expert (me) in a trial in which the conviction depended on several jailhouse informants. The opinion is here: State v. Leniart. The discussion of the expert issue is in Part IV, beginning on page 42.
The opinion contains several key findings:
1. The Court “acknowledged the growing recognition by the legal community that jailhouse informant testimony is inherently unreliable and is a major contributor to wrongful convictions throughout this country.” (p. 43, quoting State v. Arroyo)
2. “Although credibility determinations ultimately must be left to the jury, expert testimony nevertheless is admissible if it can provide a jury with generalized information or behavioral observations that are outside the knowledge of an average juror and that would assist it in assessing a particular witness’ credibility. As long as the expert does not directly opine about a particular witness’ credibility or [] testify in such a way as to vouch indirectly for or bolster the credibility of a witness, the expert’s testimony would not invade the province of the jury to decide credibility and may be admitted.” (p.49)
3. An understanding of jailhouse informant culture, including the expectation of benefits and the lengths to which informants may go to procure and fabricate evidence, is not within the ken and understanding of the average juror (p. 50).
4. Expert informant testimony is similar to expert testimony regarding the unreliability of eyewitness testimony which is now widely viewed as admissible (p.51-52).
5. Generalized jury instructions may be insufficient to educate jurors regarding the dangers of informant unreliability, since in eyewitness cases “generalized jury instructions were not an adequate substitute for expert testimony” (p. 52).
Washington Post zeroes in on jailhouse snitches in capital cases
The Washington Post just ran this story entitled “Va. murder trial may become part of national debate on jail informants.” The story exposes the use of four questionable jailhouse informants in a Virginia death penalty case, and connects those issues to the Orange County scandal, another high profile informant debacle in Washington D.C., and reform efforts around the county. From the story:
“When a Virginia man faces a possible death sentence in a murder trial later this year, his fate may rest on the testimony of four jailhouse informants, two of whom were initially found mentally incompetent to stand trial in their own cases.
The case of Joaquin S. Rams could soon become part of a growing national backlash over the government’s use of testimony from “snitches” — inmates who offer information against other inmates in exchange for lighter sentences or other benefits — to obtain convictions, sparked by a significant number of wrongful convictions attributed to false informant testimony.”
Reliability hearings in Washington state
The Washington State House and Senate are considering bills that would institute pretrial reliability hearings in which judges would evaluate informant witnesses for unreliability before those informants could testify in front of juries. The House version would mandate the hearings; the Senate version gives judges discretion over whether to hold them or not. News coverage from the Associated Press here.
Reliability hearings are one of many important tools available to combat unreliable informants and avoid wrongful conviction, including corroboration requirements, stronger and earlier discovery requirements, jury instructions, and limits on when and how informants can be used. The Washington legislation thus represents an important first step. It is motivated in part by the wrongful convictions of three young Washington residents several years ago who were convicted based on the testimony of a highly unreliable compensated informant.