Monday, July 03, 2006

Dallas fake drug case shows why many distrust informants

The Dallas News ran an item yesterday criticizing the now-notorious "Stop Snitching" t-shirts, while Canada's National Post had an article last week decrying websites that out confidential informants like

As I've said before, what's frequently missing in this debate, and in these articles, is a distinction between criminal informants or "snitches" and plain old garden variety witnesses. To me, that distinction is the witnesses' incentive to assist law enforcement. When a witness reports a crime, it's because they want justice in the case, or perhaps because they are compelled by subpoena, etc. When a criminal becomes an informant and receives leniency in exchange for information, or when someone in the underworld becomes a professional, paid informant and makes a living off the enterprise, that's a different kettle of fish entirely. Such testimony is more likely to be unreliable and self-interested, and deserves closer scrutiny.

The arguments become especially confusing because criminals and law enforcement
have a mutual interest in confusing criminal informants and witnesses. Crooks want all witnesses to go away, not just those who've committed crimes, while police would prefer that the public not examine their informant practices too closely, preferring to conflate the crooks who provide often-questionable testimony with Grandma calling in a burglary.

It's easy to understand why police don't want "snitch" defined more narrowly than just a synonym for "witness" - often today's informant practices aren't a pretty sight viewed from up close. Take the immediate example of the Dallas fake drug scandal, fallout from which continues to envelope the Dallas Police Department. In that case a crooked cop, Mark Delapaz teamed up with lying infomants to frame dozens of innocent people with fake drugs ("
Delapaz gets two 5-year terms in fake drug case," Dallas Morning News, June 30). Last week Delapaz was convicted of stealing money and falsifying documents. Reported the News:

Prosecutors charged that Mr. Delapaz, 37, was motivated to steal money because he had $60,000 in credit card debt and presented evidence that he forged paperwork and skimmed some of the more than $400,000 in police money that passed through his hands in 2001.

"This trial was especially important because we finally in an open courtroom got to have the evidence of theft and forgery," prosecutor Toby Shook said.

Witnesses testified that even after Mr. Delapaz received several warnings that some of his large drug seizures did not contain real drugs, he defied orders by two supervisors and continued using a discredited informant.

In the weeks before an investigation mounted and he was placed on desk duty, Mr. Delapaz's work became erratic, testimony indicated. In October and November 2001, Mr. Delapaz checked out more than $46,000 in police money to make drug deals, but never made any arrests and arranged to have the large quantities of drugs he purchased immediately destroyed, according to court testimony.

Mr. Shook told jurors in closing arguments that Mr. Delapaz ordered the evidence destroyed because he knew at that point that the drugs were fake but wanted to keep stealing money.

At the same time, Mr. Delapaz did not alert his superiors or prosecutors when he learned that lab tests had come back negative on one large seizure, causing an innocent man to stay in jail several months longer, Mr. Shook said.

Funny how Delapaz was sentenced in Dallas last week, but a Sunday article on "snitching" never mentioned how badly informants have been misused by Dallas police. That's emblematic of the problem with criticizing wholesale such "Stop Snitching" sentiments - it ignores the extent to which the system of informant use in the criminal justice system has become corrupt, problematic and crime-producing in its own right. Plus it minimizes legitimate values of loyalty, trustworthiness and reliability that many Americans think are important.

One needn't embrace the "stop snitching" meme nor justify attacks on witnesses to see that the use of informants by law enforcement needs reform. As the Dallas News article shows, criticisms of snitching have hit a nerve with portions of the public most likely to be targeted by police - youth and minorities. Those themes tap into deep, legitimate anger that likely can't be assuaged with tough on crime platitudes. To be credible to those communities, law enforcment officials who criticize the t-shirts and websites must be accountable for improving their own bad practices.

I've suggested in the past a number of topline reform proposals that should be part of the discussion, but which were never mentioned in either the News or Post articles. Here's a sampling compiled from a variety of sources, or see Grits' entire
ouevre on informants:
  • Corroboration: In the Bible, both Mosaic Law and New Testament writings demand that no one be judged guilty of a crime on the uncorroborated testimony of a single witness. Without going that far (though I'm willing if the Legislature is), it makes real sense to require corroboration for all testimony by witnesses who receive incentives, especially cash or reduced sentences for their own crimes. (After innocent people were framed in drug stings in Tulia and Hearne, the Texas Legislature in 2001 enacted a requirement for corroborating informant testimony in drug cases.)
  • Reliability hearings: In civil cases, judges decide in reliability hearings whether expert witnesses with long lists of credentials may testify as experts. New statutes should require similar pretrial reliability hearings to ensure a judge deems an informant credible before a jury hears their testimony.
  • Supervisory controls: All conversations between police and informants should be recorded. Alternatively, officers should only interview informants in pairs. Informants who will be used on more than one case should be interviewed by a supervisor, and more detailed statistical and other documentation about informants and their activities should be required. More supervisory check-offs on payments to confidential informants is needed, and payments above a de minimus amount should only be made in the presence of supervisors. These ideas could all be implemented administratively at the department level without changing the law.
  • Right to counsel: Informant agreements are essentially informal plea bargains. Informants whose culpability for their own crimes will be reduced or prosecution avoided should routinely be afforded a right to an attorney before entering into a "snitch" agreement, just as though they'd been charged with a crime. These "contracts" are generally one-sided and may even obligate informants to commit crimes in which they wouldn't otherwise engage.

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