When do snitches become government agents? Court ruling leaves open major loopholes

This is not a Texas case but here's an interesting legal development on the subject of "snitching," or the use of "confidential informants" by police, in this instance jailhouse informants rewarded with leniency in exchange for testimony that helped convict a defendant.

The judge in the case ruled that jailhouse snitches aren't "government agents" if they voluntarily report jailhouse conversations, even when the informant already had in place standing, open-ended snitch contracts with prosecutors. Reports the Knoxville News-Sentinel ("When does snitch become government agent," Nov. 10):

In what appears to be the first ruling of its kind in the federal court region known as the 6th Circuit - of which Tennessee is a part - U.S. District Magistrate Judge Bruce Guyton has crafted a test to determine just when jailhouse snitches become government agents.

The ruling, issued Friday, comes in the case of Vicente Corona, an illegal immigrant with alleged ties to a violent Mexican drug cartel and accused of heading up a large-scale drug conspiracy that funneled tons of pot and cocaine from California via mail-delivery services to a host of states, including Tennessee.

Corona, through defense attorney Steve Johnson, tried to block federal prosecutors from using against Corona incriminating statements he allegedly made to fellow inmates in the Blount County Jail.

Johnson argued that the half-dozen inmates prepared to testify against Corona had struck deals with the U.S. Attorney's Office that included promises of sentencing breaks for any snitch work they might do. That, Johnson contended, made them government agents bound by the same rules as legitimate law enforcers.

Agents interviewing Corona would be required to inform him of his constitutional rights. The snitches, Johnson contended, should be held to the same standard.

First Assistant U.S. Attorney Mike Winck and Assistant U.S. Attorney Trey Hamilton disagreed, arguing that jailhouse informants become agents of the government only when they are specifically instructed to target a particular person.

None of the informers against Corona had been told to elicit alleged confessions from Corona, the pair argued.

The problem for Guyton was that the 6th U.S. Circuit Court of Appeals, which decides legal challenges of federal cases in Tennessee, Ohio, Kentucky and Michigan, had never decided when an informant becomes an agent. Neither had the U.S. Supreme Court.

Johnson urged a broad test, arguing that any deal that gives an inmate a break for snitch work makes that informant a tool of law enforcement.

Winck and Hamilton pushed Guyton to create a "bright-line" test used in other federal court circuits in which an informant becomes an arm of the government only when the government specifically sends that snitch to do its dirty work.

In his ruling, Guyton sided with Winck and Hamilton.

"The court is persuaded the test for agency is as follows: regardless of whether the inmate informant had entered into a cooperation agreement with the government or had cooperated with authorities in the past, law enforcement must have instructed or requested that the informant obtain information from a particular defendant in order for the informant to be acting as a government agent," Guyton wrote.

According to the magistrate judge, anything less than a "bright-line" test is wrong.

"The court finds that based upon this body of law and because such a test provides clear guidance to law enforcement and defendants on the issue, the test for government agency embraced by this court is not only proper but mandated," Guyton wrote.

Corona is set to stand trial in February. Because he has two prior felony drug convictions in California, he faces a mandatory life term if convicted.

In the run-up to his trial, authorities have alleged Corona was not only responsible for shipping massive amounts of cocaine and marijuana to dealers throughout the eastern seaboard but also was linked to a cartel that killed his brother.

While I agree a "bright line" needs to be created to decide when snitches become surrogates for law enforcement, I think this judge drew the line in the wrong spot. If prosecutors have already entered into a cooperation agreement with an informant, I don't see why the creation of the information-exchange agreement wouldn't trigger the agency's "control" of the informant.

What's more, since jail officials decide who goes where within the jail, intentionally placing an informant with an existing cooperation agreement in the same cell or vicinity of someone whom the ADA wants them to snitch on seems like intentionally circumventing the rules with a wink and a nod. This case was decided by a federal district judge in the 6th Circuit and I don't know what is the 5th Circuit standard (the article mentioned that SCOTUS had never ruled on the subject).

What do the lawyers in the crowd think about it?

The use of jailhouse snitches, to me, show why even corroboration frequently isn't enough to prevent informant abuses. Prosecutors may have evidence which does not conclusively prove guilt, but which they know could provide "corroboration" if the informant tells their story in just the right way.

Increasingly, I'm thinking we may need to skip past mere corroboration as a reform demand and head straight back to Mosaic Law, which required that "One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established." (Deuteronomy 19:15) Christ formally affirmed this doctrine as part of the New Testament covenant in Matthew 18: 15-16, as the Apostle Paul did in Second Corinthians.

As I've said most recently here, I'm not a biblical literalist, nor do I believe in biblical inerrancy. However, I believe the Bible is a moral document, and since debates over "what is moral" and "what is just" date back millennia, only a fool would ignore it or deny its historical relevance to western jurisprudence or as a moral touchstone.

On the question of corroboration, I think the ancient Jews got it right, not just for snitches but also for eyewitnesses, whose testimony may often be flawed from either error or secret motivations. Corroboration in many cases is not enough to prevent convictions of innocent people - "two or three witnesses," as Christ put it, should be required for prosecutors to introduce testimony given in exchange for leniency. That person's word should never be enough to convict.

I feel the same way about eyewitness testimony where the witness did not previously know the person against whom they're testifying (though I know that's a harder sell and mere corroboration would be a major step forward). Error rates are just too high to continue as is knowing that frequently innocent people have and will be continued convicted.

The main argument against requiring corroboration or multiple witnesses that I've heard on this blog and elsewhere is that it would disempower the jury, that current law allows jurors to evaluate the credibility of witnesses. But empirical research on deception has shown over and over that liars fool people about half the time.

We cannot continue, IMO, to ignore this factual reality. Informants who receive incentives for their testimony have incentives to lie to give prosecutors the information they need for a conviction. Under certain, well-understood circumstances, victims and witnesses frequently misidentify offenders. Why not change the rules governing snitch testimony to prevent wrongful convictions on the front end instead of making it easier to use unreliable testimony, as the Tennessee judge did.

Given all the recent Texas innocence cases, this is a subject I'd hope the Texas Legislature would take up in 2009, along with other needed innocence reforms. It's now well past time for that to happen.

RELATED RESOURCES:

• National ACLU website on criminal informants
• Prior Grits posts on snitching abuses