Prof. Levenson Co-Authors Report Assessing Criminal Informant Practices in Orange County

Professor Laurie Levenson was part of a committee that today released the "Orange County's District Attorney Informant Policies and Practices Report" after reviewing the facts regarding informant use that ultimately prompted a judge to dismiss the entire OC District Attorney's Office from prosecuting the case of Scott Dekraai, who was charged with 2011 mass shooting in Seal Beach, Calif.

U.S. DOJ criticizes DEA informant program

 By Professor Alexandra Natapoff

This was originally posted on Snitching.org 

The Office of the Inspector General (OIG) of the U.S. Department of Justice has just released this report, Audit of the Drug Enforcement Administration’s Confidential Source Policies and Oversight of Higher-Risk Confidential Sources.

This is an important report for a number of reasons.  The press and the public have had trouble getting basic information from the DEA about its informant policies and usage: this audit fills in some of those informational gaps. The audit identifies numerous troubling practices within the DEA and offers new insights into the kinds of risks that are routinely run by federal officials who rely on criminal informants.  The audit also strengthens the case for a pending bill in Congress entitled "The Confidential Informant Accountability Act," H.R. 2985, introduced by Rep. Stephen Lynch (D-MA). That bill would require the DEA, along with the FBI and other federal investigative agencies, to report to Congress the serious crimes committed by their informants, as well as their payments and rewards.  As described in greater detail below, the OIG found that the DEA was seriously deficient in documenting and controlling the crimes committed by its informants.

Why Misdemeanors Aren't so Minor

By Professor Alexandra Natapoff

Yesterday, people across America pleaded guilty to crimes they didn't commit. This isn't something new or extraordinary. Every year, the American criminal system punishes thousands of people who are not guilty. These routine wrongful convictions never make it into headlines because they are misdemeanors, petty offenses like trespassing, disorderly conduct, or loitering. Minor offenses are largely ignored because we are usually focused on the felonies--the rapes, murders, drug crimes, and robberies. But felonies are actually exceptional. Approximately 1 million felony convictions are entered every year; more than 10 million misdemeanor cases are filed in the same time. In most states, misdemeanor dockets are four or five times the size of felony dockets. If you ever enter the American criminal justice system, odds are it will be for a misdemeanor. They may be seen as small-time offenses, but collectively how we process misdemeanors represents an immense and influential public institution. Something so powerful deserves far deeper scrutiny.

Read the full piece on Slate

Prof. Natapoff tracks Congressman Lynch's proposed informant legislation

By Professor Alexandra Natapoff

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.

Who 'snitching' really betrays

By Professor Alexandra Natapoff

In 1998, I was a community lawyer in inner-city Baltimore and taught an after-school law class for neighborhood kids. One evening, a boy of about 12 said something that would change my thinking forever.

"I got a question," he said, leaning forward intently. "Police let dealers stay on the corner 'cuz they snitching. Is that legal? I mean, can the police do that?" When I explained that they could, he and his friends slumped down in disgust. "That ain't right!" and "The police ain't doing their jobs!" they exclaimed. "So all you gotta do is snitch," another concluded, "and you can keep on dealing."

Fifty years ago, "snitching" had a very different meaning. Last fall, it was claimed that Ernest Withers -- nicknamed the "original civil rights photographer" -- was working as a paid FBI informant even as he snapped iconic pictures of the Rev. Martin Luther King Jr., the Little Rock Nine and striking sanitation workers.

Read the complete posting at CNN.com.

Ninth Circuit overturns murder conviction based on perjured informant testimony

By Professor Alexandra Natapoff

Yesterday, in Maxwell v. Roe, the Ninth Circuit decided that Bobby Joe Maxwell's due process rights were violated in 1984 when the government used Sidney "the Snitch Professor" Storch as the main witness at his multiple homicide trial. L.A. Times story here: Appeals Court overturns murder convictions of alleged L.A. serial killer.

This is an important case for a number of reasons. The first is historical: Storch was one of the most infamous jailhouse snitches in the Los Angeles County Jail during the 1980s, a period in which jailhouse snitch fabrication was rampant, numerous wrongful convictions occurred, and which eventually triggered a massive Grand Jury investigation and strigent reforms in Los Angeles.

The factual basis for the decision is also important. Appellate courts rarely conclude as a factual matter that a witness such as a jailhouse informant committed perjury, which is one of the reasons it is so difficult to overturn a conviction even after a witness recants. See previous post: In the news-- Recantation. In this case, the Ninth Circuit decided that "it was objectively unreasonable for the Superior Court to find that Storch testified truthfully at the 1984 trial," based on Storch's history as an informant and his other lies at trial.

Read the complete posting.

Massachusetts Supreme Court disapproves of prosecutorial rewards to witnesses

By Professor Alexandra Natapoff

Two witnesses in Wayne Miranda's murder trial received $2000 each from the Chamber of Commerce because their testimony assisted in producing a guilty verdict. As the Boston Globe writes, the Massachusettes Supreme Court, while approving such witness reward programs generally, has ruled that prosecutors cannot participate in themor help witnesses get rewards when those rewards are contingent on convictions. Commonwealth v. Wayne Miranda, SJC-10568.

Two witnesses in Wayne Miranda's murder trial received $2000 each from the Chamber of Commerce because their testimony assisted in producing a guilty verdict. As the Boston Globe writes, the Massachusettes Supreme Court, while approving such witness reward programs generally, has ruled that prosecutors cannot participate in themor help witnesses get rewards when those rewards are contingent on convictions. Commonwealth v. Wayne Miranda, SJC-10568.

While the Massachusetts Supreme Court should be lauded for its ethical concern, its decision is somewhat ironic. Prosecutors routinely provide far greater benefits to criminal informant witnesses, in the form of liberty and leniency, than a few thousand dollars. In many jurisdictions, these rewards can be contigent on conviction. And even when the rewards are not expressly contingent on conviction, every attorney and informant knows that a witness in a successful conviction is more likely to get rewarded.

This is why Professor George Harris [author of Testimony for Sale: The Law and Ethics of Snitches and Experts, 28 Pepp. L. Rev. 1 (2000)], and I have recommended leveling the playing field by creating defense informants, i.e. rewards for informants who come forward with information that might help the defense rather than the prosecution. As it currently stands, an offender with information helpful to the defense cannot expect any benefits--only the government can give those. This lopsided arrangement is, as the Massachusetts Supreme Court pointed out, not in the interests of accuracy or justice.

For more postings, please see Prof. Natapoff's Snitching blog at http://www.snitching.org.