Snitching

Criminal Informants and the Erosion of American Justice

Alexandra Natapoff

• Publisher: NYU Press
• Year: 2009
• Print ISBN: 9780814758977
• eBook ISBN: 9780814758588
• Topic: Social Sciences
• Subtopic: Criminal Law
• Index: Social Sciences

2010 Honorable Mention, Silver Gavel Award, American Bar Association Uncovers the powerful and problematic practice of snitching to reveal disturbing truths about how American justice works Albert Burrell spent thirteen years on death row for a murder he did not commit. Atlanta police killed 92-year-old Kathryn Johnston during a misguided raid on her home. After being released by Chicago prosecutors, Darryl Moore—drug dealer, hit man, and rapist—returned home to rape an eleven-year-old girl.Such tragedies are consequences of snitching—police and prosecutors offering deals to criminal offenders in exchange for information. Although it is nearly invisible to the public, criminal snitching has invaded the American legal system in risky and sometimes shocking ways. Snitching is the first comprehensive analysis of this powerful and problematic practice, in which informant deals generate unreliable evidence, allow criminals to escape punishment, endanger the innocent, compromise the integrity of police work, and exacerbate tension between police and poor urban residents. Driven by dozens of real-life stories and debacles, the book exposes the social destruction that snitching can cause in high-crime African American neighborhoods, and how using criminal informants renders our entire penal process more secretive and less fair. Natapoff also uncovers the far-reaching legal, political, and cultural significance of snitching: from the war on drugs to hip hop music, from the FBI's mishandling of its murderous mafia informants to the new surge in white collar and terrorism informing. She explains how existing law functions and proposes new reforms. By delving into the secretive world of criminal informants, Snitching reveals deep and often disturbing truths about the way American justice really works.

CHAPTER 1

The Real Deal

Understanding Snitching

I want these new shoes, I want this or I want drugs to sell, or something like that . . . and the police asked me for information. I’m just gonna give it to them to get what I want, even if they gonna give me some drugs or give me some money, or whatever, whatever they gonna give me I’m still gaining. . . . I’m gaining to get something in my pocket. . . . And in another way, I could fucking well get caught with a gang of cocaine and I know the man they want, they’ll tell me, “I’m gonna let you stay on the street a little bit longer if you tell me where he is.” Sure I’m gonna tell him, he’s right over there.

—interview with a street snitch¹

The judicial process is tainted and justice cheapened when factual testimony is purchased, whether with leniency or money.

—United States v. Singleton²

THE CENTRAL, DEFINING characteristic of snitching is the deal between the government and a suspect. In that deal, the government ignores or reduces the suspect’s potential criminal liability in exchange for information. From street corners to jailhouses to courtrooms around the country, thousands of suspects work off their guilt by cooperating with police or prosecutors. Their crimes may go lightly punished, or not punished at all. Indeed, if the deal takes place early enough, these crimes may never even be officially recorded.

This method of resolving criminal liability is a radical departure from the usual ways in which we handle questions of guilt. Typically, if the government suspects a person of wrongdoing, it will arrest and/or charge him with a crime.³ Such charges are a matter of public record and trigger numerous consequences, including the onset of the defendant’s right to counsel. Likewise, a person charged with a crime must either go to trial to contest his guilt or publicly admit liability by pleading guilty. These processes of filing charges, going to trial, and pleading guilty are heavily regulated by procedural rules, many of which are grounded in the U.S. Constitution. The process is monitored by lawyers and judges and leaves a paper trail. While it is true that conventional plea bargaining involves significant horse trading over facts and guilt, and much of that bargaining process takes place in private, an interested member of the public can usually discern after the fact the basis on which a person was found guilty, and what his punishment was.⁴

Snitching is the clandestine, black-market version of this process. It resolves guilt mainly off the record, without rules, at the discretion of individual law enforcement officials. For example, instead of serving his sentence for running an identity-theft ring in San Francisco, Marvin Jeffery became an informant. While providing information to the police on the street, Jeffery continued to expand his illegal ring. Although he committed additional offenses, violated his probation, and incurred several arrest warrants, police permitted him to remain at large because of his cooperation. These numerous deals remained largely secret: even investigators on related cases were unaware of Jeffery’s special status. Finally, after he sold an illegal AK-47 machine gun that was used to kill a police officer, he disappeared. Jeffery’s long history of ongoing cooperation and wrongdoing came to light only because of the happenstance of his link to that lethal weapon.⁵

Informant practices such as these represent a fundamental alteration of the criminal system’s response to wrongdoing. No longer simply the basis for arrest, prosecution, or punishment, criminal conduct becomes instead the starting point for negotiations that may never be publicly revealed, and in which police and prosecutors may tolerate ongoing crime. In deciding that an informant’s usefulness outweighs his culpability, police often implicitly downplay the seriousness of the informant’s crimes and the significance of holding such offenders accountable, while elevating the importance of future cases that the informant might help them make. Likewise, when prosecutors tailor charges not solely to the magnitude of the crime but to the cooperativeness of the criminal, they are making similar judgments.

Such practices represent a retreat from some core purposes of the criminal law, such as evaluating individual moral culpability and publicly condemning crime. Instead, they elevate very different values such as an offender’s immediate investigative usefulness, law enforcement efficiency, or even mere convenience. Informant practices also alter some basic features of criminal procedure, from the ways in which investigations are conducted to the terms of plea bargains to the respective roles of defense counsel, judges, and juries. As law professor Graham Hughes once wrote, cooperation agreements are “sharply different from the general phenomenon of plea bargaining. They are exotic plants that can survive only in an environment from which some of the familiar features of the criminal procedure landscape have been expunged.”⁶

Although all snitching requires a deal, informant arrangements vary widely, from Marvin Jeffery’s informal understanding with his police handlers to elaborately written cooperation agreements worked out by counsel for both sides. The nature of the deal will be affected by the type of underlying crime, and the extent of involvement by police, prosecutors, or defense counsel. The resulting obligations imposed on informants—and their potential rewards—vary widely as well. What follows is thus a description of the general contours and variables of the informant bargain—in practice, each individual deal will look very different.

I. Anatomy of an Informant Deal

Police and prosecutors are the primary government officials who create and control informant deals, and they engage informants in distinct ways. Police are generally authorized to conduct investigations, make arrests, and sometimes, determine the nature of initial criminal charges. Prosecutors appear later in the process and file formal charges and handle plea bargaining, trials, sentencing, and other public aspects of the legal case. Police and prosecutors may also work together throughout a particular investigation or case, making decisions about informants’ conduct and rewards.

A. Police

Sometimes referred to as “handlers,” police officers and investigative agents are on the front lines of the informant phenomenon, with the most information about and influence over informants and their ongoing relationships with the government. Because police handle arrests, they typically make the first contact. Dennis Fitzgerald, retired DEA special agent and former Miami police sergeant, explains the process as follows:

Offering an arrested individual the opportunity to cooperate and mitigate his situation is the technique most frequently used to recruit an informant. . . . [T]he incident should have taken place discretely [sic] and without fanfare. If not, word of his arrest will have spread quickly “on the street.” Once booked into jail, his value to the agents as an informant may rapidly diminish.⁷

Police may also approach or arrest people expressly for the purpose of turning them into informants, even if there is insufficient evidence to prosecute them. According to Dr. Stephen Mallory, a 25-year veteran narcotics agent, former police trainer, narcotics bureau director, and member of DEA and FBI task forces, “[another] method that can be effective for recruiting informants is an ‘informed bluff.’ If the investigator . . . has failed to produce an indictable case, a bluff may be his only alternative. . . . When a potential informant believes that a case is pending on his activities, he/she may agree to cooperate.”⁸

As Agent Fitzgerald acknowledges, the tactics used to recruit informants may themselves be illegal. Police, for example, may target a prospective informant and wait

until he commits a crime or is suspected to be in possession of a controlled substance or other contraband. He is then “arrested” following what is usually an illegal search and seizure. The subject, fearful of going to jail, may immediately agree to cooperate (flip) and be “unarrested.” He will work as an informant laboring under the impression that charges will be filed unless he cooperates.⁹

Once the suspect agrees to cooperate, he will strike a deal with the officer. The deal may be verbal, with details to be worked out later, or it may involve a written agreement. As the street snitch quoted at the beginning of this chapter explains, sometimes the deal can be as simple as the officer’s agreement not to arrest the suspect and to let him “stay on the street a little bit longer” in exchange for a tip. By contrast, the FBI requires its agents to write down all informant agreements.

Even if an informant is arrested and charged with a crime by a prosecutor, an active informant’s most frequent contact will be with the police or investigative agent. The handler will control the informant’s activities, tell him what to do, receive his information, and potentially act on it. The handler in turn will report to the prosecutor about the information obtained from the informant, about the informant’s other activities—for example, if he has committed additional crimes—and about whether or not he has been cooperative. The police handler is thus the government official closest to the informant, with the most knowledge, control, and day-to-day contact with him.

The relationship between an active informant and his handler is complex, personal, and a two-way street. The more heavily police rely on snitches, the more important it becomes for them to work with, retain, and protect their informants. Agent Mallory describes the importance of maintaining an officer’s personal reputation among criminals.

The reputation of an investigator is paramount to informant recruitment. The criminal elements of a community know who the fair, productive, and professional investigators are in a police organization. They know who to trust, whose word is good, and who will demonstrate persistence toward solving crimes. They also know who has influence with prosecutors, judges, and other law enforcement agencies. In other words, they know who to “weigh in” with. . . . After a successful prosecution, my telephone would begin to ring. . . . These informants may be seeking help with their charges, calling out of fear of being charged, or just in need of money.¹⁰

Agent Mallory further describes handling informants as a form of employee management, dependent on “motivation, leadership style, and job satisfaction.”

Informants, like other productive people, must be motivated to reach their potential. . . . Once the investigator’s positive reputation has become known in the community, informants will be more easily recruited and controlled by the investigator. He will be known as a police officer who understands and works with people.¹¹

Views differ within the law enforcement community about how best to handle informants. For example, according to Agent Mallory, keeping informants motivated may involve delegating power to the informant to design investigations or select targets, in order to enhance his job satisfaction. “The investigator may use empowerment to motivate a potential informant. Although care must be used when allowing informants to exercise too much control or to have too much input into case planning, participat[ion] by the informant does seem to produce more cooperation.”¹² By contrast, John Madinger, senior special agent with the Criminal Investigative Division of the IRS and former narcotics agent, believes that authority should never be delegated to informants, even though it may well produce good results.¹³

Police may work with an informant on more than one case, and in different ways. While a particular informant may be a key witness for one crime, he may merely provide corroboration or other information regarding another. Police may maintain their relationships with informants as a way of keeping feelers out in the community or tabs on a situation unconnected to any particular investigation. Agent Madinger describes one investigator in a small county who developed dozens of criminal informants, maintaining a set of cross-referenced three-ring binders in which he recorded all the information and crimes about which he learned. In the course of a single evening, this one agent might meet with six or seven individuals for debriefing.¹⁴

Investigative agents thus have immense power to decide the course of the criminal informant’s relationship with the government. They are the most directly involved with the day-to-day instructions and management of investigations, including keeping tabs on the informant’s ongoing criminal activities. They also heavily influence the eventual criminal charges that will be lodged against the informant, if any, because they have the discretion to decide whether to arrest him in the first place, what to charge him with initially, and what to tell the prosecutor.

B. Prosecutors

Prosecutors typically do not start working on a case until a police officer or investigative agent has made an arrest or produced some evidence of a crime. Once police have initiated a case, the prosecutor must evaluate the evidence and decide whether to file charges or to continue the investigation or both. Prosecutors may thus meet an informant for the first time after an investigative officer has already established a working relationship. Or, a suspect may be brought in for questioning and the prosecutor can decide to flip the suspect by offering a deal.

In the federal system, once a suspect has been formally charged, an informant deal will often come about as a result of a “proffer session.” The defendant, his lawyer, the prosecutor, and, typically, the agent will all sit down in a room together. The parties will sign an agreement that nothing the defendant says in that room during that proffer session will be used as evidence against him. And then the defendant will talk.

In an effort to better understand the cooperation and proffer process, law professor Ellen Yaroshefsky interviewed numerous prosecutors and other attorneys in the Southern District of New York. The prosecutors explained that they spend a great deal of time and effort trying to discern the value and veracity of information obtained from informants, including extensive debriefings, investigation, and corroboration. They also described the dangers of the proffer process. “[C]ooperators are eager to please you,” one prosecutor explained. “Telling them that you just want the truth is meaningless.” According to another prosecutor, “Many of them come in believing that This is What They Want to Hear Time rather than This is What Happ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• Chapter 1: The Real Deal: Understanding Snitching
• Chapter 2: To Catch a Thief: The Legal Rules of Snitching
• Chapter 3: Beyond Unreliable
• Chapter 4: Secret Justice
• Chapter 5: Snitching in the ‘Hood
• Chapter 6: “Stop Snitching”
• Chapter 7: How the Other Half Lives: White Collar and Other Kinds of Cooperation
• Chapter 8: Reform
• Conclusion
• Notes
• Index
• About the Author