Snitching

Criminal Informant Law, Policy, and Research

Reliability

New Yorker article on out-of-control FBI informant

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Great article in this week’s New Yorker by Evan Ratcliff, entitled The Mark: The FBI needs informants, but what happens when they go too far? It’s about a longtime FBI/DEA informant named Josef Meyers who worked under the name Josef Franz Prach von Habsburg-Lothringen, claiming to be descended from Austrian royalty, who early in life was diagnosed with a violent “unspecified psychosis” and “latent schizophrenia.”

The story focuses on one particular ‘mark,’ a former district attorney named Albert Santoro, who eventually pled guilty to “operating an unlicenced money-transmitting business,” and who maintains that he was entrapped by von Habsburg into appearing as if he was engaged in money laundering. The piece includes jaw-dropping details about von Habsburg’s operations, such as thousand dollar dinners at fancy restaurants designed to lure investors, and how he and his wife lived lives of staggering luxury and excess. The story also details the FBI’s efforts over the years to protect its informant, including tens of thousands of dollars in payments, helping him avoid punishment for his own drug dealing and fraud, and even arresting a defense team’s investigator when he got too close. Von Habsburg is currently in prison for failure to pay child support. A classic tale of a criminal informant who took the system for a wild ride, much like this one.

At least five imprisoned based on lying drug informant

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Watch this video news clip from WINK-TV News (an ABC affiliate) in Florida: “Convicted felon: lying confidential informant sent me to prison.” The informant, Shakira Redding, admitted that she set up innocent people by fabricating drug deals: she’d buy drugs in advance and hide them on her body to provide to the drug task force as “evidence” after the alleged deals. The government had promised her money, a home, and custody of her children if she provided incriminating evidence against others. Romill Blandin was one of Redding’s innocent targets who spent 20 months in prison after Redding made a video of a man in a car that she claimed was Blandin, and then picked Blandin out of a line-up. Tellingly, Blandin never saw the video before he pled guilty–his public defender told him that he couldn’t see it unless he went to trial and that his criminal record made it likely that the jury would convict him. He chose to plead guilty instead of risking a longer sentence.

This story is an almost exact replay of the Hearne, Texas debacle in which a confidential informant working for the local drug task force set up dozens of innocent African Americans. The Hearne case was the subject of the movie “American Violet,” and an ACLU lawsuit. Here’s the description from the book’s introduction:

In the economically troubled town of Hearne, Texas, 27-year-old criminal informant Derrick Megress wreaked havoc. In November, 2000, a federally-funded drug task force swept through the town arresting twenty-eight people, mostly residents of the Columbus Village public housing project. Megress, a suicidal former drug dealer on probation facing new burglary charges, had cut a deal with the local prosecutor. If he produced at least 20 arrests, Megress’s new charges would be dropped. He’d also earn $100 for every person he helped bust. One of his innocent victims was waitress Regina Kelly, mother of four, who steadfastly refused to plead guilty and take a deal for probation even as she sat in jail for weeks. Another target, Detra Tindle, was actually in the hospital giving birth at the time that Megress alleged that she had sold him drugs. A lie detector test finally revealed that Megress had lied–mixing flour and baking soda with small amounts of cocaine to fabricate evidence of drug deals. Charges against the remaining Hearne suspects were dropped, although several had already pleaded guilty.

Such stories are not aberrations; drug task forces are large-scale users of criminal informants in which the risks of fabrication are high. Massachusetts, for example, reports that in 2005-2006 its federally-funded drug taskforces relied on over 2000 confidential informants who made 45 percent of the taskforces’ controlled buys.

Snitches bolster weak cases

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The most egregious cases of informant unreliability occur where an entire case turns on the testimony of a single compensated snitch. The dangers of wrongful conviction in this scenario are so obvious that numerous states have or are considering corroboration requirements. But informant testimony can produce wrongful convictions in another way, and that is by making weak cases look stronger than they are. For example, Florida Today ran a story last week (updated link) on the probable innocence of Gary Bennett. Bennett was convicted based on a now-discredited dog sniff expert and the testimony of a jailhouse snitch. Similarly, in the high profile case of Cameron Todd Willingham, the Texas man was convicted and executed for arson based on a combination of poor forensic science and the testimony of a jailhouse snitch who later recanted. See previous post.

Such cases are not accidents. Jailhouse snitches are infamous for fabricating information about homicide and other high-profile cases, and offering the information to law enforcement without any solicitations or promises on the part of the government. In other words, the very existence of the case generates the bad evidence because of the general expectation in the offender population that such information will eventually be rewarded. This snitch testimony, however, makes the original case look stronger than it really is. This problem cannot be solved by corroboration requirements, since the informant’s information is automatically “corroborated” by the pre-existing weak evidence. Yet another reason to restrict the use of jailhouse informant testimony.

Do jurors ignore informant rewards?

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One of the central justifications for the use of compensated criminal witnesses is the idea that juries can evaluate informant credibility in ways that lead to fair and reliable outcomes. Specifically, the Supreme Court held that rewarding criminals for testimony is constitutional, relying in part on the procedural protections of discovery, cross-examination, and jury instructions. The idea is that the government can constitutionally reward its witnesses as long as the defense knows about it and the jury is properly instructed.

Recent psychological research throws some doubt on this idea. Dr. Jeff Neuschatz and a number of other psychologists published the following paper: The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decision Making, Law & Human Behavior 32 (2008): 137-149. They concluded that jurors who were told that a witness was getting a deal (and therefore had an incentive to lie) were just as likely to convict as jurors who didn’t know that the witness was being compensated. Moreover, the bare fact that an informant said there was a confession made the jury more likely to convict. From the article:

First, both college and community samples demonstrated that conviction rates were unaffected by the explicit provision of information indicating that the witness received an incentive to testify. Second, and consistent with the research on confession evidence in the courtroom, the presence of a confession, albeit a secondary confession, had a significant influence on mock juror conviction rates. More specifically, in every witness typeand across both college and community samples, mock jurors convicted significantly more often when there was a secondary confession provided by a cooperating witness than when no such witness had testified….

Even though the witness in the incentive condition had an enormous motivation to fabricate evidence (having been provided a situational incentive to testify), jurors appeared to ignore this information and render verdicts that were not significantly different across the Incentive and No Incentive conditions. The participants may not have recognized or considered the impact that an incentive might have on behavior and/or the willingness to provide accurate and truthful information. Furthermore, participants did not have significantly different ratings of truthfulness or trustworthiness across the Incentive and No Incentive conditions.

This is an important finding. The system assumes that jurors who are told that an informant is getting a deal will be less likely to believe the informant and less likely to convict. This study suggests not only that this isn’t so, but that just having a criminal informant testify to a confession significantly enhances the likelihood of a conviction.

Even jurors were worried about informant reliability

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On Friday, a Denver jury convicted Willie Clark in the killing of Denver Bronco Darrent Williams during a drive-by shooting. Much of the case, although not all, was based on the testimony of heavily rewarded criminal informants. Stories here and here. One witness in particular, Daniel “Ponytail” Harris, admitted to being in the car from which the bullets came, and testified that he saw Clark, and only Clark, shoot out the window at the limousine in which Williams was riding. Harris was facing a life sentence for an unrelated federal drug charge, but in exchange for his testimony, he will see that sentence cut down to five years. He will also avoid being prosecuted for the shooting himself. Another witness, gang member Vernone Edwards, will get a decade shaved off his crack-cocaine trafficking sentence. This sort of heavily compensated, self-serving testimony is one of the prime reasons that informant testimony has become such a problematic source of error. Three alternate and released jurors who spoke to reporters after the case was over said they did not believe Harris. One of the lead prosecutors in Harris’s drug case candidly explained that prosecutors can only do their best to determine whether such witnesses are telling the truth.

It used to be that informant unreliability issues were litigated, if at all, on habeas, or by volunteer attorneys at innocence projects long after the case was over. Those days are coming to an end. With heightened public and media awareness of the problem, I predict that we will see more cases in which the problem of informant reliability is addressed early on in the process, at trial or on appeal, and not, as so often has happened in the past, as an afterthought or not at all.