Say Hello to "The Snitching Blog"

I think I found my new BFF. Say hello to the brand new "The Snitching Blog", by Loyola Law Professor Alexandra Natapoff. Its tagline is: "A comprehensive resource on criminal informants: legal developments, legislation, news stories, cultural reactions, commentary and more...."

Professor Natapoff is an award-winning scholar and a nationally-recognized expert on snitching in the criminal justice system. Prior to joining the faculty she served as an assistant federal public defender in Baltimore.....She clerked for the Honorable David S. Tatel, US Court of Appeals, District of Columbia, and for the Honorable Paul L. Friedman, US District Court, Washington, DC.


From her testimony before the House Judiciary Committee in 2007 on informants:

The government’s use of criminal informants is largely secretive, unregulated, and unaccountable. This is especially true in connection with street crime and urban drug enforcement. This lack of oversight and quality-control leads to wrongful convictions, more crime, disrespect for the law, and sometimes even official corruption. At a minimum, we need more data on and better oversight of this important public policy.

...Informants breed fabrication....According to research conducted by Professor Laurence Benner and the San Diego Warrant Project, police often fabricate informants to support warrant applications. This is made possible because courts almost never require the informant to be produced or the information verified. Many wrongful convictions have resulted from police and prosecutors using informants to bolster weak cases.

Among her recommendations:

Reliability Hearings and Corroboration Requirements

When scientific and other experts testify in federal court, we require the court to act as “gatekeeper” to ensure their reliability and to protect the jury from undue prejudice and confusion. The same concerns arise with informants, who are, after all, another form of compensated witness. Numerous state jurisdictions recognize the inherent unreliability of snitch and accomplice witnesses and require corroboration. These two measures would help alleviate the significant problem of false informant testimony at trial. Because such a small percentage of cases go to trial, however, it should be recognized that trial-based procedures can address only a part of the larger problem.

For me, one of the most problematic issues is the use of uncorroborated snitch and accomplice testimony -- particularly when the Government uses it at sentencing to seek an increase in relevant conduct under the Guidelines. We need a policy that requires corroboration of snitch and accomplice testimony by independent evidence before a grand jury can find probable cause, a jury can find proof beyond a reasonable doubt, or a court can rely on it to increase the quantity of drugs for which a defendant is responsible at sentencing.

Professor Natapoff's book, Snitching: Criminal Informants and the Erosion of American Justice will be published in November but is available to pre-order now.

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    i especially like this part: (none / 0) (#1)
    by cpinva on Tue Aug 18, 2009 at 10:48:19 PM EST
    The same concerns arise with informants, who are, after all, another form of compensated witness.

    that said, i suspect most juries will have a difficult time wrapping their brains around that concept, since (for the most part) actual cash compensation isn't involved.

    this is essentially bartering: "we'll reduce your sentence (or whatever) in return for your testimony." the average person doesn't see bartering as an income generating activity.

    I don't agree with that. (none / 0) (#2)
    by Bemused on Wed Aug 19, 2009 at 07:20:16 AM EST
      I don't think juries have any problem grasping that the consideration of a favorable plea deal or even no prosecution is extremely valuable and often far more valuable than the often relatively paltry sums paid informants receive.

       To the extent "deal snitches" might be perceived as more credible than "money snitches (although it is not unheard of for a snitch to be both, i think it's due to how they are viewed as people. A "money snitch" looks like the lowest of the low, setting up people out of pure greed. A "deal snitch" is in a desperate situation. I think jurors (and people generally) can relate more -- and perhaps see themselves doing it-- to the plight of the deal snitch.

      I also think it is easier for the prosecution to persuade people to believe a deal snitch. "his deal is contingent on his telling the truth and if he lies, he loses the deal is a better (if not always true) argument than "you should believe despite the fact we paid him because..." That's a hard because to finish.

       I'm not one who sees juries as slow-witted rubes lucky they found their way to the courthouse. I think most of the attacks on juries come from intersts that oppose the jury system and some of it from people looking to explain their bad outcomes by way of things that have nothing to do with the merit of their causes or their performance in court.



    Snitches are a dying breed. (none / 0) (#3)
    by Chuck0 on Wed Aug 19, 2009 at 09:46:01 AM EST
    T-shirt not all too uncommon at motorcycle runs.

    They might wear the shirts (none / 0) (#4)
    by Bemused on Wed Aug 19, 2009 at 10:02:08 AM EST
     but ask, for example, the Mongols or Hell's Angels, how many of their members cut deals and tell on their brothers when the Feds come rolling into town.

      The truth is most criminal defense attorneys have many cases where the "snitch" has another label--- "client." This is not a morally unambiguous line of work. Lawyers have a duty of loyalty to their clients regardless of how we may personally feel. If a client is facing prosecution, the attorney has a duty explain  to the client options that may be available to reduce exposure. If after explaining the pros and cons of the various options, the lawyer is told the client wishes to offer information or assistane to the government in exchange for consideration, the lawyer has a duty to the client to assist the client in obtaining the best possible deal--regardless of whether the lawyer finds such arrangements morally wrong.

       The ONLY other option is to withdraw from representation, but if you are truly committed to the belief snitching is always wrong then there are few cases you should take because in a great many cases the lawyer knows the likelihood that the option of assistance might arise and might be in the client's best interest. Taking someone's money in those circumstances but refusing to commit to assist the client to the end regardless of his choices is morally if not ethically suspect in my opinion.

    Even if the lawyer tells the client in advance he will withdraw if the client chooses to assist the government and the lawyer accepts those terms, I think it's wrong, because the lawyer almost always understands much better than the client the realities of the situation going in and how events to follow might cause a client to change his mind.  



    The T-shirts originated (none / 0) (#6)
    by Chuck0 on Wed Aug 19, 2009 at 11:54:41 AM EST
    with the Outlaws. A club with a history of members rolling over and snitching. I think the intent was to warn off members from following suit.

    I saw George Carlin in Laughlin, Nevada once where he did a bit about snitches. He related it mostly to the mob, but his overall message was that no matter what they tell you, no matter what they promise, prosecutors and cops ARE NOT YOUR FRIEND.


    Don't generalize (none / 0) (#7)
    by Jeralyn on Wed Aug 19, 2009 at 12:13:14 PM EST
    but ask, for example, the Mongols or Hell's Angels, how many of their members cut deals and tell on their brothers when the Feds come rolling into town.

    Not too many, and I'm in one right now.  It's their choice not the lawyers. The only obligation the lawyer has is to present any offer the government makes to the client -- or to ask the Government for a deal if the client directs you to. Then it's up to the client whether to take it. That's a personal and moral decision the client has to make.  

    There's no obligation to seek out a deal if the client doesn't ask you to, regardless what you think of the strength of the case. The defense lawyer's job is to put the Government to its burden of proof, not roll over because the government has a strong case. And if the client wants a deal and the government offers a crummy one the client rejects, get ready for trial, rather than continuing to whine for a better deal.

    And Bemused, I don't mean to insult you, but please make sure to state your opinions as such. This blog does not give legal advice and your views, which I frequently disagree with, are merely your views. I don't want anyone reading your comments to think TalkLeft endorses your views or even more importantly, have them take what you write as truth or show up in google as what TalkLeft believes. Your comments may or may not be accurate or representative of what other lawyers would or should do. That's why it's important for you not to lecture here, but to state your opinion as being your opinion. Thank you.


    uh, (none / 0) (#8)
    by Bemused on Wed Aug 19, 2009 at 12:58:10 PM EST
     Your first 2 paragraphs pretty much just restate what I said in my comment.

      I nmy opinion, use of in my opinion is one of the most stilted and redundant ways to preface an opinion and the vast majority pf people can recognisze opiniosn without such verbosity.


    talkleft has "no snitching" merchandise (none / 0) (#5)
    by Jeralyn on Wed Aug 19, 2009 at 11:52:13 AM EST
    here, here and here.

    And the "tongue-in-cheek" one, "Nobody talks, everybody walks."


    not like experts (none / 0) (#9)
    by diogenes on Wed Aug 19, 2009 at 01:14:32 PM EST
    The court vets experts because experts have knowledge the trier of fact (jury) lacks and judges presumably apply Daubert criteria to whether a particular expert can testify whereas a jury is not expert in using these criteria.  
    The jury--trier of fact--ought to be able to decide for themselves whether or not they trust a snitch.  Isn't that the jury's job, or do you think that we should just do away with juries and make all trials bench trials?

    I think the better alternative (none / 0) (#10)
    by Chuck0 on Wed Aug 19, 2009 at 01:39:22 PM EST
    would be to do away with snitches.

    snitch or whistleblower? (none / 0) (#14)
    by diogenes on Thu Aug 20, 2009 at 06:02:21 PM EST
    If the person is against you, he's a snitch.  If he's for you, he's a courageous whistleblower.

    first, define snitch (none / 0) (#11)
    by Bemused on Wed Aug 19, 2009 at 03:02:05 PM EST

     Then, when we have done that let's start on the other classes of people who should be declared incompetent witnesses because of facts supporting an inference of bias which might plausibly cause the to lie.

     The answer is not in forbidding people from testifying. The answer is closer oversight, full disclosure and zealous cross examination.

      What would be gained -- and for whom--- from a regime that prevented people who received a favorable plea agreemtn from testifying?

      I hate to break it you boys and girls, but if you are opposed to prison overcrowding that would be pretty counterproductive.

    Tell that to (none / 0) (#12)
    by Jeralyn on Thu Aug 20, 2009 at 01:21:23 AM EST
    Dracy, who at 23 years old with no prior felony convictions, was sentenced to life in prison for 250 grams of crack because a cooperating, former codefendant (who took the 5th and refused to testify at his trial) testified at his sentencing hearing that he bought a kilo of crack from Dracy once a month for four months. There was zero corroboration. He could have said five kilos once a month or five ounces once a month and there would have been no way to challenge it. In addition to some other enhancements from a case in which the evidence had been suppressed so no conviction, the judge added 4 kilos of crack to the 250 grams and gave him a life sentence. The opinion is here.

    Had the cooperator testified at trial, the burden of proof would have been beyond a reasonable doubt. At the sentencing hearing, the judge considered it as relevant conduct subject to a lesser standard of proof.

    The jury never heard about the four keys, but instead of getting a 10 year sentence for the 250 grams of crack he was convicted of, he got life  And the federal appeals court upheld it. (The penalty for more than 50 grams of crack is 10 to life so it didn't exceed the statutory maximum but his guidelines would not have exceeded 10 years without the added magical, mythical 4 kilos.

    Neither closer oversight, full disclosure or effective cross examination by trial counsel would have helped him. It's the guidelines and the mandatory minimum statutes and the absurdity of the 5k1.1 reducton that provides cooperators with an incredible incentive to lie. As for being paid in freedom or money, remember that for most people, freedom is a far more precious commodity.

    The last line of the appeals court decision:

    Although it is tragic for a twenty-three-year-old to spend the rest of his life in prison, Congress has provided this penalty for drug crimes involving large quantities of cocaine. We must follow the law.

    I have a client in federal prison in CA who is at the end of his 20 year term for 40 grams of crack. He's not eligible for the 2 point sentence reduction that was introduced last year because (another catch 22), even though his guidelines were based on the 40 grams of crack, since he had two prior state felonies for small amounts of crack, he is deemed a career offender which jumped his guidelines to level 34 and at Cat. 6. The courts say if you were sentenced under the career guideline, you weren't sentenced under the crack guideline and so you can't get the two point reduction. He'd be out now with it.

    He's sent a Xmas card to me and my son every year and writes periodically. Always friendly letters, asking how we are doing. He's been in since 1993. Maybe he'll get out in 2011 or 2012 -- all for 40 grams of crack and possessing a gun.


    not saying tthere is not a problem (none / 0) (#13)
    by Bemused on Thu Aug 20, 2009 at 09:57:55 AM EST
      I'm saying the answer is not prohibiting people from testifying in court.

    The problem in your frst example  is the judge  finding the uncorroborated word of a convicted felon credible and a system which allows for sentences to be greatly increased based on facts not proven to the jury.   In that first example,  even if the "snitch" had testified at trial and the jury either acquitted on counts relating to the snitch testimony or answered interrogatories showing the jury was not convinced of the testified to quantities beyond a reasonable doubt, the judge could still make the relevant conduct finding by a preponderance of the evidence. It's not really that the snitch is allowed to testify that is the problem but what is done with the testimony.

       You don't explain how the second example about your client in CA has anything to do with snitch testimony, and just point out the guidelines retroactivity does not help defendants whose sentences under the guidelines would remain the same even with 2 level reduction applying in §2D1.1.

       If the drug weight takes you to, say, level 28   but  CO applies you get  an offfense level of 37. If the drug weight only takes you to 26 but you are CO, you sill go to 37 -- that's why retroactivity doesn't help those for whom the career offender guideline applies. I'm not sure how that is germane.

      Finding witnesses incompetent to testify because of indicia of bias is a poor route to pursue in my opinion. If the mother or best friend of one of your clients wished to provide an alibi, would you accede to the  testimony being excluded if the prosecutor argued that witness had as much or more reason to lie due his bias?