Tuesday, December 18, 2007

Clemens informant shielded from prosecution: Do snitch agreements give incentives to lie or tell the truth?

Does a prosecutor's promise not to indict a snitch if they talk to authorities make an informant more or less likely to tell the truth?

On the one hand, the prosecution's option to indict if an informant gives false testimony supplies incentives for honesty under such circumstances. On the other hand, giving full immunity to criminal conspirators might make them feel free to just give the prosecutors whatever they want - specifically, accusations against their investigative target - in order to keep from going to prison.

Those are the questions raised in a New York Times piece today ("Trainer's steroid testing testimony followed deal with prosecutors," Dec. 18) about the informant who's accused Roger Clemens of steroid use, Brian McNamee.

It was a turning point in the exposure of the use of performance-enhancing drugs in baseball. McNamee went on to tell his story to the former Senator George J. Mitchell and his staff. Ward said the government, in effect, told McNamee, “We are not going to charge you if you cooperate.”

The proffer agreement, to some, appears to add credibility to McNamee’s testimony against Clemens because of the punishment he would face if he lied, several former prosecutors said Monday. Clemens’s lawyer declined comment Monday, but last week said his client was outraged at the accusations against him in the Mitchell report and that McNamee’s deal with the government gave him incentive to lie. ...

A proffer is a written agreement between a person and a prosecutor allowing a person to say what they know about possible illegal activity with the assurance it will not be used against them at trial. The government is free to follow investigative leads. The proffer agreement, colloquially known as a “queen for a day” letter, may lead to a written immunity, cooperation or plea bargain agreement, or it may stop there if the government does not plan to take the case further.

Daniel C. Richman, a professor at Columbia University Law School and a former federal prosecutor, said it was extraordinary to see prosecutors compel an individual to cooperate with a private third party like Mitchell.
That last observation strikes me as odd, too: US Attorneys are usually pretty tight-fisted with their investigative information. I'm not sure I can think of a similar situation where the Justice Department used an informant proffer to gather evidence for a third party like Major League Baseball. It's one thing to use that authority to pressure witnesses and pursue prosecutions, but surely another to use it merely to embarrass major league ballplayers with uncorroborated allegations?

McNamee denied Clemens' involvement with steroids in numerous interviews with investigators, said the Mitchell report, until he finally changed his testimony in exchange for a promise not to prosecute. As I've written previously, "Was McNamee telling the truth before prosecutors threatened him with prison, or after? One just can't tell from the report." Clemens' attorney maintains that "McNamee’s deal with the government gave him incentive to lie."

In other snitching related news, the informant who accused Michael Vick in dogfighting charges received a prison sentence 1/10 as long as the former Atlanta Falcons football star - 2 months compared to Vick's 23 month sentence. Prosecutors had suggested the informant receive only probation, but a federal judge said "no," declaring “You were as much an abuser of animals as any other defendant in this case.”

The judge's concerns mirror my own about many informant agreements: They often formally tolerate behavior by snitches that's at least as harmful as those whom they testify against. The judge is right: This fellow is as guilty as Michael Vick, perhaps more so, and I'm sure if prosecutors had offered Vick would have been willing to testify against him! But Vick was the target: Prosecutors wanted to make an example of him, so they didn't really care if this guy was punished. That might fulfill certain public relations goals, but it's not a strategy that particularly enhances public safety.

RELATED: See an interview with Ethan Brown about his new book, "Snitch," on AllHipHop.com.


Anonymous said...

Look man! Prosecutors get whoever, whenever indicted for whatever. Snitchs are going to say or do what the DA tells them to do or say to save their own butt. Anybody who says different is a lying snake of a piece of S---!!!

Anonymous said...

Snitches are necessary but should be corroborated in some way.

As for Clemens, I think he's a liar.

Don't put an ounce of credibility in his "I'm surprised I was part of this report." That's crap. Everyone in that report was given the opportunity to go before the panel and talk about the information that they had received on each one of them. Clemens refused to do so and lawyered up. For him to feign surprise is no better than Barry Bonds saying he's the rightful home run king. Both are utter bullshit.

Gritsforbreakfast said...

Given threats by federal prosecutors against McNamee, can you blame Clemens or anybody else for "lawyering up"? This was a pure fishing expedition; I wouldn't talk under those circumstances, either.

And I'm curious, RJ - if you think snitches should be corroborated, why do you accept McNamee's uncorroborated allegations against Clemens?

Clemens may well have used steroids, but this one coerced witness, IMO, doesn't prove it.

Anonymous said...

Of course everyone can (and for the sake of my kids' college fund should) lawyer up. And last but not least, something about the Constitution, blah blah blah.

I will admit my bias against baseball on this very issue. It is the reason I will never again give baseball one more dollar of mine. I refuse to go to games even on free tickets.

I think there are times when snitch evidence can and can't be corroborated, which is why it should be weighed on an individual basis. If the prosecutors went to McNamee and said "if you don't give us Clemens we'll throw you in jail" it would be more suspicious. If they said "come clean or we'll throw you in jail" it's a little less damning of any one individual. In this instance the prosecutors showed more of an interest in catching anyone, and to my knowledge didn't target a particular individual. That removes it a bit from the McCarthy era, the way I see it.

And finally, many people don't exactly commit crimes in the open. If you want to catch the ones that are good at it, sometimes you have to find another way in.

As far as corroboration, Pettite showed a lot of class in his announcement the other day. I've never liked him, but he earned my respect with a statement that not only corroborated McNamee's testimony about him but also gave a plausible explanation. He didn't admit to taking steroids, but he wasn't accused of it either. You may say that he could afford to come clean under those circumstances, but you could just as easily say that McNamee could have said he was injecting when he actually wasn't. Instead, McNamee appears to have said that Pettite used exactly what Pettite admits to have used, and no more.

Snitches are distasteful on many levels, but sometimes you have to dance with the devil.

And finally, being as how Clemens will likely never stand trial for using an illegal substance, whether or not we believe this snitch has little effect legally speaking. At trial I'm sure Hardin (and the friend of mine that works for him) would discredit the uncorroborated testimony, but it's a fact issue. The credibility of a witness is always up for grabs by the opposing side and they can always look into bias or motive for their testimony. In this case it would be more obvious that the guy made a deal. But is making a deal the only reason you don't like the testimony? What if he just found Jesus and wanted to come clean? What if he was writing a book or had other motives, like Canseco, who outed a few people himself but not in return for a deal with a prosecutor? What about the guy in Georgia who snitched as a profession?

When is it a "snitch" and when is it a person with knowledge of relevant facts?

Gritsforbreakfast said...

"When is it a "snitch" and when is it a person with knowledge of relevant facts?"

My answer: When the system exchanges lenience for someone's own offenses in for information about someone else.

Anonymous said...

Huh. So when should they and when should they not offer lenience? I know you're OK with plea bargains generally. Why does information received in return automatically make it a bad thing?

Anonymous said...

Anonymous said...
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All the crap you will hear on how to beat drug test, is just that crap. For example people think that adding bleach to their urine or even drinking vinegar will work, it won't!

Telling someone how to beat a drug test is probably illegal in Texas, trying to falsify a drug test In Texas is either a Class A misdemeanor or a state felony, I forget and I don't care! So for entertainment and educational purposes only, using someone else's urine "who's clean" or buying syntactic urine that is sold over the Internet for around $25 is the only thing that will work. Syntactic urine is the same liquid that is used to calibrate the drug testing machines. If you have some state official who enjoys watching you pee in a cup, well then you are screwed!

The government is not my parents and they will never ever tell me what I can or can't put in my body!

Gritsforbreakfast said...

rj - I think they did ask about Clemens specifically in threatening prosecution. Clemens was the big fish they were after.

I do not believe cooperation should be the only justification for lenience in sentencing, which is the situation at the federal level. Though I'm not against them in principle, I'm not a great fan of plea bargains as they're constituted, and think they're open to abuse including abuses like these. The difference between McNamee and Canseco's book, e.g., is that nobody threatened Canseco with prison if he didn't write it.

Who would you falsely accuse if the other option was prison time? We'd all like to think we'd never do that, but given federal cooperation rules, the incentives are there to lie. And since the info cannot be corroborated, it's just McNamee's word against Clemens. Maybe Clemens is lying, but as I said, this testimony to me doesn't "prove" it one way or another.

Finally, you write, "The credibility of a witness is always up for grabs by the opposing side and they can always look into bias or motive for their testimony." The problem is, that whenever someone lies there's only a 50% chance those listening to them will figure it out.

To the last anon, I don't have any resources on the topic. 20 years ago Abbie Hoffman wrote a book called Steal this Urine Test that gave such instructions, and the testing technology hasn't significantly changed. best,