Snitching

Criminal Informant Law, Policy, and Research

Secrecy

9th Circuit clarifies DEA disclosure obligations under FOIA

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The Freedom of Information Act (FOIA) empowers individual requestors to compel the government to disclose its records. Various exceptions permit the government to withhold certain records regarding informants, but the Ninth Circuit recently explained some limits to those exceptions. In Pickard v. Dep’t of Justice, 2011 WL 3134505 (9th Cir., July 27, 2011), William Pickard filed a FOIA request with the DEA to get records regarding Gordon Todd Skinner, a DEA informant. The DEA denied his request by submitting a so-called “Glomar response” in which it neither officially confirmed nor denied the existence of Skinner as an informant. The 9th Circuit held that the DEA in effect had already “officially confirmed” Skinner as a confidential informant by eliciting testimony about and from him in open court at Pickard’s trial, and that therefore the DEA could not avoid the FOIA request in that manner. In other words, once the government relies on an informant–either through an agent’s testimony at trial regarding that informant or by using the informant as a witness–it cannot subsequently block a FOIA request by refusing to acknowledge the existence of the informant. This does not mean that the DEA necessarily has to produce records regarding its informants; it does mean, however, that it has to acknowledge the existence of such records and identify the specific FOIA exceptions that might permit nondisclosure.

This is an important decision for a number of reasons. As Judge Wallace explains in his concurrence, “the specific circumstances pursuant to which an informant’s status is deemed “officially confirmed” is a matter of first impression and great importance.” This is because the threshold question of whether a person is an informant at all may be a secret. Moreover, the decision clarifies that once the government decides to use an informant or his information at trial, it relinquishes much of its claim to confidentiality under FOIA. As Judge Wallace put it:

On the one hand, prosecutors frequently must rely on informants, who possess vital information, to prosecute dangerous criminals. On the other hand, the DEA and confidential informants have a different interest in secrecy and privacy than federal prosecutors. Yet, under the majority holding, an Assistant United States Attorney can eliminate that privacy interest by asking a single question–i.e., “Did you serve as a confidential informant”–in open court.

“Snitch-jacketing”

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In response to a Freedom of Information Act request, the FBI has just released for the first time hundreds of memos regarding its “special file room,” in which it has stored for decades information considered too sensitive for its central filing system. As described by the Boston Globe, the special filing system is designed “to restrict access [to information] severely and, in more sinister instances, some experts assert, prevent the Congress and the public from getting their hands on it.” The information includes such things as plans to relocate Congress if Washington is attacked, files on high-profile mob figures and their political friends, as well as the FBI’s own questionable activities such as spying on domestic political organizations. From the Globe:

Other files on domestic spying that were routed to the special file room involved “black nationalist extremists.” There were also files about an “extremely sensitive counterintelligence technique” called snitch-jacketing, which apparently involved the FBI spreading false information that members of a targeted group were government informants in order to sow conflict within their membership.

While “snitch-jacketing” was a new term to me, it’s an old concept. An important historical strand of informant use has been the government’s creation and deployment of informants to infiltrate and disrupt civilian political activities. I’ve blogged about this issue here in the context of FBI infiltration of Muslim communities; Gary Marx is the preeminent expert on this subject.

London police resist disclosing snitch payments

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The London Daily News reports that Scotland Yard may be facing contempt of court for refusing to reveal how much it spends on snitches. Story here. The paper reports that the city spends approximately $4 million a year to pay informants. While U.S. governments do not reveal such figures either, a study by the National Law Journal concluded that in 1993, federal agencies paid their confidential informants $97 million.

Witness intimidation, secrecy, and the right to a fair trial

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Witness intimidation is a serious problem in many drug and gang-related investigations. When prosecuting certain defendants, the government needs to be able to protect its witnesses from threats and intimidation. At the same time, most defendants pose no threat to witnesses, and defendants are constitutionally entitled to know who will testify against them and to get material evidence about those witnesses. The Court of Appeals of Maryland, the state’s highest or ‘supreme’ court, recently issued a thoughtful decision that highlights many of the tensions inherent in these two competing concerns. In Lancaster v. Maryland, in an armed robbery prosecution, the Court held that the trial judge erroneously permitted the government to withhold the names of key witnesses from the defendants before trial. The Court concluded that the government failed to support its contentions that the witnesses had been threatened or that the jailed defendants posed a substantial threat. The Court wrote:

The State failed to present any evidence regarding specific threats from Lancaster, his brother, or their associates, against the witnesses. No evidence was presented regarding Lancaster’s reputation for violence . . . The state also failed to identify any persons who might have carried out the alleged threats against the witnesses as Lancaster and his brother were incarcerated at the time. . . . We further conclude that the protective order in effect tied defense counsel’s hands and foreclosed him from pursuing a valuable source of information for cross-examination of the State’s witnesses.

The government had withheld the names of four witnesses: two of those witnesses were accomplices in the robbery and received light sentences in exchange for their cooperation, a fact that the defendants did not learn until trial.

By contrast, in Coleman v. State, an earlier Maryland case, the Court concluded that the trial judge properly withheld witness names from the defendants. In Coleman, the defendants were part of a gang that had threatened witnesses, there was evidence of specific threats against witnesses, and the defendants in the case were accused of murder.

The Lancaster and Coleman cases highlight the contextual nature of the problem–in some cases, withholding witness names and other information unfairly prevents defendants from challenging the accusations against them, while in other cases it is a vital precaution. Courts are supposed to carefully evaluate the facts each time. All too often, however, the mere claim that witnesses might be intimidated is persuading courts and other decision-makers to keep information secret, a phenomenon I explore at length in Chapter Four entitled “Secret Justice.” Here’s an excerpt:

Informant practices are inherently secretive: snitches often need their identities protected for safety, while the effectiveness of informant-driven investigations turns on their clandestine nature. But the secretive effects of using informants go far beyond ongoing investigations or protecting particular informants’ identities. Snitching has altered the ways that investigations are conducted and recorded; it affects public record-keeping by police and prosecutors, discovery practices, and what gets written down during plea negotiations. It has also shaped the informational rules prescribed by Supreme Court doctrine, internal judicial branch information policies, and even information-sharing between the Department of Justice and Congress. In other words, the pressure to conceal informant practices broadly affects the criminal system’s culture of record keeping, adversarial information-sharing, public policy and disclosure, making the entire process less transparent and accountable.

New ABA opinion on prosecutorial duty to disclose information

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The American Bar Association just released an important new opinion regarding the prosecutorial ethical duty to disclose evidence and information favorable to the defense. The rule itself requires prosecutors to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” The opinion interprets this ethical mandate very broadly: it is more demanding than constitutional Brady disclosure requirements; it covers all information favorable to the defense, not just evidence; it is up to the defense, not the prosecution, to evaluate the utility of the information; the government must disclose information as soon as is reasonably practical, and the defendant cannot waive these rights or absolve the prosecutor of her disclosure duties. Here are a few key excerpts:

Rule 3.8(d) is more demanding than the constitutional case law in that it requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on a trial’s outcome. . . .The rule requires prosecutors to disclose favorable evidence so that the defense can decide on its utility.

The ethical duty of disclosure is not limited to admissible ‘evidence’ . . .; it also requires disclosure of favorable ‘information’. Though possibly inadmissible itself, favorable information may lead a defendant’s lawyer to admissible testimony or other evidence or assist him [sic] in other ways, such as in plea negotiations.

For the disclosure of information to be timely, it must be made early enough that the information can be used effectively. . . . Once known to the prosecutor, [evidence and information] must be disclosed under Rule 3.8(d) as soon as reasonably practical. . . Among the most significant purposes for which disclosure must be made under Rule 3.8(d) is to enable defense counsel to advise the defendant regarding whether to plead guilty.

Where early disclosure, or disclosure of too much information, may undermine an ongoing investigation or jeopardize a witness, as may be the case when an informant’s identity would be revealed, the prosecutor may seek a protective order.

This is an extremely important opinion for informant law and practice, for several reasons…(more after the break)

First is that a great deal of snitch litigation involves so-called Brady or Giglio claims (see this previous post), in which it is alleged that the prosecution withheld information from the defense about snitch witnesses. The ABA opinion not only reiterates the importance of prosecutorial disclosure generally, but explains that the prosecutor’s ethical obligation to hand over favorable information is broader than her constitutional obligation. In other words, even if the Constitution does not require disclosure, the prosecutor has an independent professional duty to disclose. While the violation of this duty will not invalidate a conviction, it could lead to professional discipline or firing.

Another interesting feature of the opinion is that prosecutorial supervisors must “establish procedures to ensure that the prosecutor responsible for making disclosure obtains evidence and information that must be disclosed.” This includes keeping track of information in one case that might need to be disclosed by a different prosecutor in another case. In other words, prosecutor offices must have data collection and dissemination mechanisms by which their employees can comply with their ethical obligations. This position contrasts with the recent Supreme Court decision in Van de Kamp v. Goldstein this year, in which the Court held that prosecutorial supervisors could not be sued for failing to create data collection systems to provide informant-related impeachment material to defendants. While under Van de Kamp a chief prosecutor cannot be sued for the office’s lack of disclosure procedures, under the ABA opinion she could be disciplined.

In effect, the ABA has decided that the Supreme Court’s decisions on prosecutorial disclosure are too weak, ethically speaking, and that prosecutors and their supervisors have far stronger professional obligations to disclose information to defendants, including information about government informants.

Ethical obligations are a crucial feature of the legal profession–attorneys can be disciplined, fired, or disbarred if they violate the ethical rules of their jurisdiction. Disclosure obligations are likewise central to prosecutorial integrity. Attorney General Eric Holder recently threw out the corruption case against Alaska Senator Ted Stevens because Holder concluded that DOJ lawyers violated their obligation to disclose information to the defense. NPR story here. Insofar as states and prosecutors take this new ABA directive seriously, it could be a powerful engine for increased disclosure and transparency.

On a more technical note (non-lawyers may want to tune out here), the opinion does not explicitly address a constitutional issue raised by the Supreme Court in Ruiz. The Ruiz Court distinguished between exculpatory Brady material–material that directly pertains to the defendant’s guilt or innocence–and exculpatory Giglio impeachment material–material suggesting that the state’s witness is lying. Classic Giglio includes information about informant rewards, the informant’s criminal record, prior history of cooperation or falsehoods, or anything that would impeach the informant’s credibility. The Ruiz Court held that although Giglio material is a form of Brady material, the government can withhold that information from defendants prior to the entry of a plea, although not prior to trial. The ABA opinion makes clear, however, that prosecutors cannot wait for trial, but have to disclose information early enough so that defendants can use it meaningfully during plea negotiations.

The question is therefore whether Rule 3.8(d) applies to Giglio impeachment material in the same way that it applies to information that “tends to negate the guilt of the accused.” In my view, it does, although I recognize that the ABA opinion does not expressly say yes or no, nor does it distinguish between Brady and Giglio the way the Court did in Ruiz. The opinion does say, however, that a prosecutor’s ethical disclosure obligations are broader than her Brady disclosure obligations, which would suggest that the ABA did not think that the Ruiz distinction matters in the ethical context.

Perhaps more fundamentally, the opinion’s broad language seems consistent with requiring prosecutorial disclosure of Giglio impeachment. The opinion says that prosecutors must disclose any information favorable to the defense, even if it’s not material to the outcome, and that the defense gets to decide on its utility, particularly in figuring out whether to go to trial, plead guilty, or investigate other evidence. These are precisely the sort of decisions that are made based on impeachment material. The ABA even contemplates the situation where the government wants to withhold the identity of an informant: the opinion says that the government can seek a protective order, not that the government can withhold the information. In sum, it would seem anomalous for the opinion to require such broad disclosure, but then permit a prosecutor to withhold the fact that her main witness is being compensated for his testimony and has lied in previous cases.