Snitch rules protect lying DEA agent

U.S. District Judge Charles Breyer would like someone to investigate whether an apparently mendacious DEA agent -- who sponsored a confidential informant the FBI fired for lying -- should be prosecuted for perjury in California's southern district. But no one will tell him who is looking into it. Ironically, the feds claim that, because of a ruling by Breyer's brother, U.S. Supreme Court Associate Justice Stephen Breyer, the Judge doesn't get to know. Law.com reports that doesn't sit well with the Justice's younger sibling:

"I understand separation of powers," [Judge Charles] Breyer said later in the hearing. "I also understand when perjury or what appears to be improper conduct appears to happen before the court."

The friction arose from Breyer's attempt to get prosecutors to investigate why DEA agent Dwayne Bareng gave conflicting testimony before invoking his Fifth Amendment right during cross examination on Aug. 16. Bareng had said he did not know why the FBI fired a key informant whom Bareng had later used in a drug investigation. He then said he did know -- it had been for lying -- before eventually taking the Fifth.

Barry Portman, the Northern District of California federal public defender, said last week that while he hopes the investigation will help defendants who face charges -- thanks to questionable snitches -- he's skeptical it will have much of an effect.

That's because of a 2002 U.S. Supreme Court decision authored by Breyer's older brother, Justice Stephen Breyer. Portman is planning to call a meeting of his deputies to discuss that issue this week.

Stephen Breyer's decision says prosecutors don't have to disclose compromising information about informants until after a defendant turns down a plea deal and opts to go to trial.

With those constraints in place, Charles Breyer was outspoken Tuesday on the problems presented by the DEA knowingly employing an informant fired by the FBI for lying.

"What bothers me in this case is accountability, as well as the initial offense," Charles Breyer said. "It appears to me there is a breakdown of accountability in this case."

That points up a key problem with the whole confidential informant system. As Prof. Alexandra Natapoff has argued, confidential informant agreements are essentially secret, informal plea bargains, but ones where the defendant has many fewer rights. No lawyers. No judicial oversight until late in the process, if ever. No in-writing guarantee the cop or prosecutor will hold up their end of the deal (Ask Anna Sage). No disclosure to the other side when the CI might be a witness in a case.

(Scandals stemming from secret, lying snitches in Dallas, Hearne and elsewhere inspired the Texas House to consider legislation this spring to require that prosecutors disclose snitch agreements 30 days before trial; HB 3151 passed out of the House Criminal Jurisprudence Committee but never received a vote on the House floor.)

After learning more about confidential informants this spring, I've come to believe the whole process is rife with abuse. At a minimum, police and prosecutors should be barred from entering into a CI agreement with possible defendants (I'm not talking here about "walk-ins" or snitches-for-pay, but criminals who are "working off" their crimes) unless the CI is represented by counsel. If a potential defendant is going to cut a deal with the government to avoid punishment for crimes, they should have a right to representation by a lawyer to make sure their rights are protected, just like if their case were going to trial.

Similarly, I think the whole system would benefit a lot if judges were brought in much earlier in the process. Presently, law enforcement can establish CIs on their own without even informing prosecutors before they make an arrest. But when the government -- be it the FBI, a prosecutor, or the cop on the beat -- uses leverage from crimes committed to coerce the CI into becoming their agent, I believe a judge should have to sign off on the deal, just like any other plea bargain. Otherwise, when something goes wrong, the judge is in the dark, just like Judge Breyer.

I wouldn't blame Judge Breyer for being a little grumpy at his brother over Thanksgiving dinner this year. Would you?

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