The Supreme Court released an order today denying certiorari in Cash v. Maxwell, formerly Maxwell v. Roe, an important Ninth Circuit decision discussed in this previous post. Usually the Court does not explain cert denials, but this case generated a heated debate between Justice Sotomayor, who supported the denial, and Justices Scalia and Alito who thought the Ninth Circuit's decision should have been overturned. See SCOTUSblog post here, and L.A. Times story here.

Today's decision is important for a number of reasons. First, it shows that the Justices have joined numerous state and federal legislators in recognizing the problem of informant unreliability. Informant-based wrongful convictions are increasingly frequent in the courts and in the news, and many states have taken up the issue. See Legislation Section of the main website. Although the Court did not answer the question today, it's a sign of the times that the Justices are arguing about it.

Maxwell also shows how the legal debate over informant use is becoming less about procedure and more about substantive questions of reliability and innocence. Until recently, most informant litigation has been a fight over disclosure: the information that the government must disclose regarding its use of compensated criminal witnesses. The Maxwell case and the Sotomayor/Scalia debate squarely confront the substantive question of unreliability: how unreliable can compensated criminal witnesses be before the law restricts their use? Or to put it another way, how high is our tolerance for the likelihood of wrongful conviction? Even Justice Scalia concluded that the informant in Maxwell's case was a "habitual liar," and that there were reasons "to think it likely that [he] testified falsely" at Maxwell's trial. The Ninth Circuit took the next step, holding that the Due Process Clause does not permit such clearly unreliable evidence to be used. As a result of today's cert denial, this holding stands.

Finally, Justice Sotomayor pointed out that the Ninth Circuit relied on "an avalanche of evidence" that the informant in that case was unreliable. The existence of such evidentiary avalanches is a relatively new phenomenon. Thanks to the innocence movement and numerous new studies (see Resources & Scholarship section on the main website), courts and litigators have more evidence than ever before regarding the unreliability of criminal informants. These new data will surely change how courts consider such questions in the future.

Filed in Informant Law, Innocence, Jailhouse Informants

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I started Snitching Blog in 2009. Since then, many lawyers, government officials, journalists and parents have told me that the blog has been helpful. I have therefore expanded the blog to include a new resource website with sections devoted to litigation, legislation, families & youth, and research materials. The site provides overviews of major issues, with cases, motions, and model legislation that can be downloaded. It describes all recent federal legislation pertaining to informants, with links to state legislation as well. It also lists dozens of books, articles, and reports about criminal informant use. Snitching Blog will continue; the resource website is for those who want to learn, work, or write in more depth about these issues. The address is snitching.org/resources/--the link is to the left. Please visit!

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The New York Times features a story this week on the expanding recruitment and use of Mexican drug informants: U.S. Agencies Infiltrating Drug Cartels Across Mexico. The story describes American law enforcement as having "significantly built up networks of Mexican informants" and focuses on the substantial benefits that such criminal informants can provide. For example:

[Informants] have helped Mexican authorities capture or kill about two dozen high-ranking and midlevel drug traffickers, and sometimes have given American counternarcotics agents access to the top leaders of the cartels they are trying to dismantle.

The U.S. also learned of a plot to assassinate the Saudi ambassador through one of those DEA-developed informants. See Huffington Post: Iran Plot to Assassinate Saudi Ambassador Foiled by DOJ Sting.

The Times story notes that informants can also give rise to "complicated ethical issues," including the fact that informants are typically working off their own crimes. Last year, NPR and Primetime ran stories illustrating the serious criminality that such informants may engage in, even while working for the government: NPR series on House of Death informant and Primetime: U.S. Customs authorizes informant to import cocaine.

Filed in Drug-related, International

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In the wake of new revelations about FBI informant crimes, U.S. Representative Stephen F. Lynch (D-MA) has introduced important new legislation that would require federal investigative agencies to report their informants' serious crimes to Congress. H.R. 3228, The Confidential Informant Accountability Act, would require the FBI, the DEA, Secret Service, ICE and ATF to report every six months to Congress all "serious crimes" committed by their informants, whether or not those crimes were authorized. "Serious crime" is defined as any serious violent felony, any serious drug crime, or any crime of racketeering, bribery, child pornography, obstruction of justice, or perjury. The bill prohibits the disclosure of informant names, control numbers, or any other personal information that might permit them to be identified. Under the U.S. Attorney General's Guidelines, the FBI is already required to disclose its informants' crimes to federal prosecutors.

The bill would also help the families of two men who were killed in connection with FBI informant Whitey Bulger to recover damages from the FBI. For more background, see these stories in the Boston Globe: Bill would aid kin of two slain men, and Pants on Fire. Full disclosure: I provided information to Congressman Lynch's office in support of this bill and I am strongly in favor of the effort.

Filed in Informant Law, Legislation, Secrecy

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Follow up to this post: A Rat's Life: MS-13 Informants Run Wild. In a rare turnaround, the government has prosecuted its own informant for lying to prosecutors about murders he previously committed. Roberto Acosta now faces up to five years; he argues that he was the government's main source for its case against MS-13 and without him they wouldn't have been able to get the numerous convictions they did. SF Weekly blog postings here: Feds Want Maximum Prison Time for Roberto Acosta, MS-13 Informant Who Lied and Roberto Acosta, MS-13 Informant Convicted of Lying, Wants Out of Jail

Filed in Drug-related, Informant Law, Prosecutors

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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.

Filed in Informant Law, Secrecy

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After serving 17 years in prison for murder, Obie Anthony was exonerated last Friday. Anthony was represented by the Northern California Innocence Project and the Loyola Law School Project for the Innocent. The judge found that the key witness--a pimp who received leniency as a result of his testimony against Anthony--lied, and that the government failed to disclose its deal with the informant. See L.A. Times story: Judge overturns murder conviction in 1994 slaying, and press release. Although the informant was promised a lighter sentence for testifying, prosecutor Scott Collins denied there was a deal. "It was not a deal in exchange for testimony," he said. "It was simply a thank-you for cooperating with the LAPD in a homicide investigation." Whether we label such arrangements a "thank you," deal, benefit, or something else, the fact remains that informants can reasonably expect to be rewarded for their testimony and are therefore incentivized to lie in ways that other witnesses are not.

Filed in Innocence

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Here is an major article--"The Informants"--from Mother Jones and the Investigative Reporting Program at the University of California-Berkeley on the FBI's use of informants in terrorism investigations. The year-long investigation examined 508 defendants in terrorism cases and found:

Nearly half the prosecutions involved the use of informants, many of them incentivized by money (operatives can be paid as much as $100,000 per assignment) or the need to work off criminal or immigration violations.

Sting operations resulted in prosecutions against 158 defendants. Of that total, 49 defendants participated in plots led by an agent provocateur--an FBI operative instigating terrorist action.

With three exceptions, all of the high-profile domestic terror plots of the last decade were actually FBI stings.

In many sting cases, key encounters between the informant and the target were not recorded--making it hard for defendants claiming entrapment to prove their case.

Terrorism-related charges are so difficult to beat in court, even when the evidence is thin, that defendants often don't risk a trial.

Filed in International, Terrorism

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The mother of a 20-year-old informant is suing two NYPD officers for failing to protect her son who was killed an hour and a half after he tipped off his handler to the location of some guns and drugs. Story here: Mom of slain informant Anthony Velez sues cops for failing to protect him. Such suits are rarely successful--courts have been reluctant to hold police accountable for the fate of their informants, even when the government contributes to the risk. See this post discussing the government's responsibility for the safety of its informants.

Filed in Dynamics of Snitching, Informant Law, Police, Witness Intimidation

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The Talmudic laws of mesira prohibited Jews from informing against other Jews to non-Jewish authorities. This ancient "no snitching" rule is getting modern attention in the Los Angeles case of Rabbi Moshe Zigelman, an Orthodox jew who is refusing to testify against other Jewish suspects before a grand jury regarding alleged acts of tax fraud and money laudering. Story here: Jewish law goes to court: Mesira meets American justice. The story describes the Talmudic issue this way:

The concept of mesira, which literally means "delivery," dates back to periods when governments often were hostile to Jews and delivering a Jew to the authorities could lead to an injustice and even death. The rules of mesira still carry force within the Orthodox world, owing both to the inviolability of the concept's talmudic origins and the insular nature of many Orthodox communities. But they are also the subject of debate over whether the prohibition applies in a modern democracy that prides itself on due process and civil rights.

This dispute dovetails with a large issue in criminal justice: what happens to the force of criminal law when people believe it is unfair or leads to injustice? Professor Tom Tyler has written extensively about the fact that people are more likely to obey the law if they perceive it to be be fair and carried out through evenhanded and respectful procedures. See, e.g., Tom Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities?, 6 Ohio St. J. of Criminal Law 231 (2008).

Filed in Dynamics of Snitching, Informant Law

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Yesterday in Sivak v. Hardison, the Ninth Circuit reversed yet another death sentence based on a lying jailhouse informant and the "State's knowing presentation of perjured inmate testimony." See also this post regarding Maxwell v. Roe. In Sivak, the prosecution used two jailhouse informants--Duane Grierson who described himself as a "chronic liar," and Jimmy Leytham, who falsely testified that he did not expect any rewards for his testimony. The Ninth Circuit concluded that these two unreliable witnesses provided the only direct evidence of Sivak's personal participation in the homicide and that therefore his capital sentencing violated due process.

Filed in Informant Law, Jailhouse Informants

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PBS is airing two films--one tonight (Sept. 6) and one on Sept. 13--that address issues of domestic terrorism. Tonight's film -- "Better this World" -- is centrally about the role of political informants and entrapment.

Here are the official descriptions:

Better This World is the story of Bradley Crowder and David McKay, who were accused of intending to firebomb the 2008 Republican National Convention, is a dramatic tale of idealism, loyalty, crime and betrayal. The film follows the radicalization of these boyhood friends from Midland, Texas, under the tutelage of revolutionary activist Brandon Darby. The results: eight homemade bombs, multiple domestic terrorism charges and a high-stakes entrapment defense hinging on the actions of a controversial FBI informant. Better This World goes to the heart of the war on terror and its impact on civil liberties and political dissent in post-9/11 America. (90 minutes)

If a Tree Falls: A Story of the Earth Liberation Front explores two of America's most pressing issues — environmentalism and terrorism — by lifting the veil on a radical environmental group the FBI calls America's "number one domestic terrorism threat." Daniel McGowan, a former member of the Earth Liberation Front, faces life in prison for two multimillion-dollar arsons against Oregon timber companies. What turned this working-class kid from Queens into an eco-warrior? Marshall Curry (Oscar®-nominated Street Fight, POV 2005) provides a nuanced and provocative account that is part coming-of-age story, part cautionary tale and part cops-and-robbers thriller. A co-production of ITVS. Winner of Best Documentary Editing Award, 2011 Sundance Film Festival. (90 minutes)

You can view the trailers here and here.

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It's rare to get this much data about informant practices. The New Jersey ACLU has released this important study of confidential informant practices across the state, based on scores of documents, cases, interviews, and government policies. According to the study,

The use of informants in drug law enforcement in New Jersey was found to be largely informal, undocumented, and unsupervised, and therefore vulnerable to error and corruption.

Among many findings, the study determined that informant use led to the following problems: manufactured criminal conduct, financial abuse, police coersion, harm to the informants, unreliability, misuse of juveniles, using "big fish" to catch "little fish," and the widespread violation of laws and guidelines. The study proposes reforms, and apparently a number of New Jersey counties have already responded with improved policies.

Filed in Drug-related, Dynamics of Snitching, Legislation

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Governor Brown just signed important new legislation requiring corroboration before a jailhouse informant can testify. SF Chronicle story here: Law requires corroboration of cellmate's testimony. California joins Texas, Illinois, Massachusetts, Idaho, and several other states that require safeguards to counteract the well-documented unreliability of jailhouse snitch testimony. Here is part of the bill:

A jury or judge may not convict a defendant, find a special circumstance true, or use a fact in aggravation based on the uncorroborated testimony of an in-custody informant.

An "in custody informant" is defined as: "a person, other than a codefendant, percipient witness, accomplice, or coconspirator, whose testimony is based on statements allegedly made by the defendant while both the defendant and the informant were held in within a city or county jail, state penal institution, or correctional institution." Full disclosure: I testified in support of this legislation.

Filed in Jailhouse Informants, Legislation

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One informant, Jorge Palacios, was a gang member suspected in a Los Angeles murder, and accused, although never charged, in the rape of a 13-year-old girl. The FBI paid him more than $300,000 over five years to help with drug investigations. The other informant, Cesar Sanchez, was caught dealing drugs. In exchange for allowing his auto shop to be used as the site of drug deals for the FBI to monitor, he earned between $50,000 and $100,000 and avoided deportation. This glimpse of the kinds of deals that the government strikes with criminal informants was on display in Omaha last week in the murder trial of Robert Nave, accused of killing Sanchez. The story, FBI tells of informant shooting, also reveals how law enforcement can be reluctant to probe the criminal behavior of their informants:

FBI agent Greg Beninato, who was Palacios' handler in Omaha, testified that the FBI knew that Palacios was the suspected driver and accomplice in the 2004 drive-by shooting of a rival gang member in Los Angeles, a charge for which he was recently arrested. Beninato also acknowledged that agents had heard accusations that Palacios may have been involved in the sexual assault of a 13-year-old girl, though no charges were brought. At one point, Riley [the defense attorney] asked Beninato whether he questioned Palacios about the two cases in order to decide whether to continue using him as an informant. "No," Beninato said. "Why not?" Riley asked. "It's a fine line between getting involved in someone else's investigation," Beninato said. "I wasn't going to question him without the (investigating agencies') permission or their request to do so."

Filed in Dynamics of Snitching, Police

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