Sunday, February 13, 2005

A Snitch in Time

Since reading Prof. Natapoff's article on the consequences of snitching, I've developed a renewed interest in the subject. Here's a few things I wanted to link to so I'd have them. If you want to know more about the shadowy world of confidential informants, I suggest you take a look:

First, what is a snitch? The definition is not flattering.

The Wall Street Journal reported in December on disparities in use of snitches by federal US Attorneys, which the November Coalition has posted online. Highlight quote: "The big fish gets off and the little fish gets eaten." The Journal reported that decisions about who gets rewards for cooperation are "often haphazard and tilted toward higher-ranking veteran criminals who can tell prosecutors what they want to know."

Northwestern University law school's Center on Wrongful Convictions recently produced a booklet (pdf, 16 pages) arguing that snitch testimony is the leading cause of wrongful convctions in the United States.

Check out the Dallas News/WFAA-TV account of Texas' worst bad snitch case in recent memory -- euphemistically known as the Dallas "sheetrock" or fake-drug scandal.
In that case, a local drug dealer/snitch, making upwards of $200,000 per year in confidential informant fees alone, set up innocent migrant workers with large quantities of fake drugs. Half the cocaine supposedly seized by the Dallas PD in 2001 turned out to be fake drugs used to set up innocent people. (Investigators initially thought the substance was ground sheetrock, but it later turned out to be pool chalk.) Texas Monthly's account of the case is here. At least one person was set up by the same confidential informant using smaller amounts of real drugs, and dozens of additional cases were made based on his word.

Of course, lying snitches can get people killed, not just wrongfully incarcerated.

The problem is, these guys just tell prosecutors whatever they want to hear -- "Just let me go, man, I can get you Osama bin Laden."

In 1999, the Chicago Tribune showed how untrustworthy jailhouse snitches lied in death penalty cases.

Meanwhile, I wasn't aware of this somewhat dated PBS Frontline story on snitches in the drug war, including interviews with a confidential informant, "Tony," who said he set up innocent people.

Always a good reminder: After 9/11 and the PATRIOT Act, the feds decided to turn ISPs, phone companies, banks and other businesses into snitches.

Jeralyn has noted before that the "Snitch System Undermines Justice."

Of course, cops make certain obligations to snitches, and occasionally an informant is in a position to hold them accountable. In this case a snitch sued, he said, as a warning to other snitches: The reason "
I'm going forward with this thing is that I want other people to know the FBI does not take care of its people."

This book looks like an interesting read, but the price is a little dear. Maybe it's in the library, or maybe the job can pay for it.

Finally, I think snitches are corrupting the justice system, just like I don't think highly of the societal contributions of undercover drug cops, especially these task-force clowns focused on making large volumes of low-level busts. But neither do I think it's a good idea to identify confidential informants by name, online, in a database, as these folks have. CI's are tools of the prosecutors and police; it's wrong to subject them to persecution for succumbing to their weak position. Plus there's too great a chance that undocumented allegations of snitching will cause somebody to be wrongfully accused or even killed. (Housekeeping note: Whenever Grits has named a Confidential Informant, it's always somebody like Othella Kimbrew in Palestine, whose identity has already been made public in court documents or press accounts.)

If anybody knows of other resources on snitching, I'd appreciate you letting me know in the comments.

UPDATE: See other Grits writing on snitches linked at the bottom of this post.

7 comments:

Dan said...

I found this federal caselaw on whosarat.com that allows the site to exist, the caselaw also says that one can put his accuser "informant or agent" in newspapers or on billboards or TV because of the 1st 5th & 6th ammendment I am surprized that it took so long for this type of site to hit the internet. here is the link to the caselaw

http://www.whosarat.com/importantcase_law/c9r421b51093303327.doc

Dan said...

1 of 2 DOCUMENTS

UNITED STATES OF AMERICA v. LEON CARMICHAEL, SR.

CRIM. ACTION NO. 2:03cr259-T

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

2004 U.S. Dist. LEXIS 13742

July 22, 2004, Decided




PRIOR HISTORY: United States v. Carmichael, 2004 U.S. Dist. LEXIS 13675 (M.D. Ala., July 20, 2004)

DISPOSITION: [*1] Request for protective order denied.

CASE SUMMARY:


PROCEDURAL POSTURE: Defendant was charged with drug conspiracy and money laundering. Shortly after his arrest, defendant set up an internet website and newspaper advertisement related to the case. The Government renewed its motion for a protective order directing defendant to remove the website from the internet. The government's motion was denied, and it appealed.

OVERVIEW: An exact reproduction of the website as it existed as of late April 2004, the third version, appeared as a full-page newspaper advertisement in a local weekly newspaper. The Government's requested relief went beyond the internet, as it asked the court to restrain defendant from taking any action that would harass, intimidate, or threaten any witness or prejudice the proceedings in the case, including, without limitation, placing the photographs or personal information of any prospective witness or informant on a poster, advertisement, or website. The Government indicated that its concerns about the website would apply equally to newspaper advertisements containing the same content. Defendant's website and newspaper advertisement were constitutionally protected speech because they fit within neither the "true threat" nor the "incitement" exceptions to the First Amendment's protection. Also, the Government did not show that its proposed protective order was the least restrictive means of eliminating the possible effect on jury members.

OUTCOME: The motion was denied.


COUNSEL: For Leon Carmichael, Sr. aka Beaver Leon Carmichael, Defendant: Amardo Wesley Pitters, A. Wesley Pitters, P. C., Montgomery, AL. Lisa Monet Wayne, Denver, CO. Mary Elizabeth Anthony, Anthony & Pratt LLC, Birmingham, AL. Ronald Wayne Wise, Law Office of Ronald W. Wise, Montgomery, AL. Stephen Roger Glassroth, The Glassroth Law Firm, PC, Montgomery, AL.

For United States of America, Plaintiff: A. Clark Morris, U.S. Attorney's Office, Montgomery, AL. Matthew S. Miner, U.S. Attorney's Office, Montgomery, AL. Stephen P. Feaga, U.S. Attorney's Office, Montgomery, AL.

JUDGES: Myron H. Thompson, UNITED STATES DISTRICT JUDGE.

OPINIONBY: Myron H. Thompson

OPINION:
SUPPLEMENTAL ORDER
Defendant Leon Carmichael, Sr. is charged with drug conspiracy and money laundering. Shortly after his arrest, Carmichael set up an internet website related to this case. The government argued that Carmichael's website is threatening to witnesses and government agents [*2] and renewed its motion for a protective order directing Carmichael to remove the website from the internet. In an order issued two days ago, on July 20, 2004, the court denied the government's renewed motion. United States v. Carmichael, F. Supp. 2d , 2004 U.S. Dist. LEXIS 13675, 2004 WL 1616446 (M.D. Ala. 2004) (Thompson, J.).
The dispute in this case is not limited to the internet, however, and the court writes separately to address the government's motion as it applies outside of cyberspace. An exact reproduction of the website as it existed as of late April 2004 (the third version) appeared as a full-page newspaper advertisement in the Montgomery Westside Weekly, a local weekly newspaper that targets primarily the African-American community; n1 also, there is no reason to doubt that the advertisement has appeared again repeatedly in that paper and in other similar papers. The government's requested relief, therefore, went beyond the internet; the government asked the court to restrain Carmichael "from taking any action . . . that would harass, intimidate, or threaten any witness or prejudice the proceedings in this case, including, without limitation, placing the [*3] photographs or personal information of any prospective witness or informant on a poster, advertisement, or website." n2 Similarly, at the May 21, 2004, hearing, the government indicated that its concerns about Carmichael's website would apply equally to newspaper advertisements containing the same content.

n1 See Order, filed May 7, 2004.
n2 Government's renewed motion, etc., filed April 27, 2004, p. 18 (emphasis added).

The court's reasoning regarding Carmichael's website applies with equal force to his newspaper advertisements. Accordingly, to the extent that the government's renewed motion includes a request for an order that Carmichael cease publishing the content of his website as newspaper advertisements, the motion is due to be denied.
Carmichael's website is constitutionally protected speech because it fits within neither the 'true threat' nor the 'incitement' exceptions to the First Amendment's protection. Carmichael, F. Supp. 2d. at , 2004 U.S. Dist. LEXIS 13675, 2004 WL 1616446, at *. [*4] There is no reason to reach a different conclusion regarding Carmichael's newspaper advertisements because the First Amendment analysis does not turn on the medium involved. The court explicitly declined to find the fact that a website was at issue constitutionally significant. 2004 U.S. Dist. LEXIS 13675, 2004 WL 1616446, at *. Carmichael's newspaper advertisements are neither a 'true threat' nor an 'incitement' under the First Amendment.
The court also held that it could not order Carmichael to take down his website because the government did not meet its burden to show that a prior restraint on Carmichael's speech rights was warranted. Carmichael, F. Supp. 2d., 2004 U.S. Dist. LEXIS 13675, 2004 WL 1616446, at *. The government did not show that its proposed protective order was the least restrictive means of eliminating the website's possible effect on jury members. 2004 U.S. Dist. LEXIS 13675, 2004 WL 1616446, at *. The same is true of Carmichael's advertisements. A juror or potential juror is more likely to come across Carmichael's newspaper advertisements inadvertently than to come across his website inadvertently, so [*5] a jury instruction not to view the advertisements will be somewhat less effective than an instruction not to view the website. Nonetheless, voir-dire questions and clear jury instructions will adequately address any possible impact that Carmichael's newspaper advertisements might have on the jury. Second, the government did not show that the website posed a serious and imminent threat to its witnesses and agents. 2004 U.S. Dist. LEXIS 13675, 2004 WL 1616446, at *. The government has not shown that the newspaper advertisements pose such a serious and imminent threat.
Finally, the harm posed by the website did not warrant restricting Carmichael's Fifth and Sixth Amendment right to investigate his case. Carmichael, 2004 U.S. Dist. LEXIS 13675, 2004 WL 1616446, at *. Not only is the same true in the case of Carmichael's newspaper advertisements, but his Fifth and Sixth Amendment interest is actually entitled to more weight here. Carmichael's website is hard to find on the internet even if one is looking for it, and it is very hard to imagine that someone could stumble upon his website by accident. Thus, to the extent that there exist people [*6] who have material information beneficial to Carmichael and who would be willing to share that information with him but do not know about this case or do not already know how to contact Carmichael, it is unlikely that the website will reach those people. On the other hand, Carmichael's newspaper advertisements are more likely to attract the attention of a person who has--perhaps without being aware of it--material information useful to Carmichael's defense. Accordingly, the newspaper advertisements are more likely to lead to information, and this tilts the balance yet further in Carmichael's favor. n3

n3 Moreover, if the newspaper advertisements (which essentially reproduce the internet site) are allowable, surely the internet site is also.

Accordingly, it is ORDERED that the request for a protective order barring defendant Leon Carmichael, Sr., from publishing his website as a newspaper advertisement, which request was included in the renewed motion for a protective order filed by the government on April 27, 2004 (doc. [*7] no. 181), is denied as well.
DONE, this the 22nd day of July, 2004.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

Gritsforbreakfast said...

Thanks, Dan, that's very interesting. I don't actually question their right to do what they're doing at all, and where CI's names have been made public in court or through the media, I don't think it's improper to publicize snitches' identity or their activities in any individual case. I just don't think gathering such a database of informants and making it public on the web is a wise activist strategy, which is an entirely different criticism. Mostly that's because I think it misplaces the blame on the snitch, instead of on the prosecutors and cops who coerce and condone their problematic behavior. The former are criminals and will not respond to the details of legislation. It's the public officials who we can properly hold accountable by requiring disclosure of witness statements and deals before trial, requiring corroboration for snitch testimony, etc.

bmorebikeboi said...

Going to be doing a piece on snitching for my soc of deviance class... some interesting comments and I'm going to check the Natapoff piece out... I also came across this story, which made me think more about it from a different (honestly less "white and privileged")perspective:
http://www.popmatters.com/columns/hill/060224-1.shtml

However, much of what I read lumps together CIs as whistle blowers and snitches. I think, if you read more about whistleblowing you'll see differences - at least differences which explain some of the motivations to action, namely that whistleblowers are more often than not in a position of supposedly acting in the "public good" by law and have witnessed some mal-doing. The often legally are obliged to report it and gain nothing when doing so. Snitching appears to be a corrupted version of this as Hill (link above) seems to be getting at. And CIs, when corrupt aren't really CIs are they - they're criminals, opportunists, what have you- the cops that employ them are dupes.

Anonymous said...

"If people got hurt or killed, it's kind of on them. They knew the dangers of becoming an informant," Capone said. "We'd feel bad, don't get me wrong, but things happen to people. If they decide to become an informant, with or without the Web site, that's a possibility."

This pretty much sums it up. As a former informant who was coerced into informing on some drug suspects some 30 years ago, I offer the following observation. In my case the police and court officials promised confidentiality. In my youthful ignorance, I hoped they were at least being straight with me. To beat a rap for selling half a gram of hashish (then a 20 year offense) at age 18 I rolled over on some people.

The situation turned out differently than they had promised, of course. Since criminal defendants have a constitutional right to information presented against them, informing is by definition not confidential. My name was soon all over my home town as a rat: my reputation ruined in that town for the duration. At least back then information traveled by word of mouth, and official records had to be accessed physically. In my case one of the people I testified against tried to murder me.

Welcome to the information age. Information wants to be free. That maxim applies to all information, now more than ever.

So my take on this situation isn't so much about the "whosarat" people: it's about the government's necessary reliance on informants to make especially drug cases. Prosecutors engage in blackmail and extortion to obtain the information they need. Those who co-operate with them do so at their own peril. In some cases that may be a price people are willing to pay to achieve their ends. The risk is and should always be a part of the equation.

It is disingenuous, though, for law enforcement and prosecutors to pretend that their practices aren't really at the root of the dangerousness of these situations. A simple fact is that the law enforcement people treat informants as expendable commodities, sometimes for the most trivial reasons.

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