DEA pays tens of millions of dollars to informants

The Drug Enforcement Administration paid its informants tens of millions of dollars even after at least one of them lied in court, reported McClatchy.

That’s according to a new report by the Justice Department inspector general, which scrutinized DEA offices across the country, including Sacramento. The inspector general’s auditors found that more than 9,000 law enforcement sources had been paid a total of $237 million for information or services.

Yet the DEA, which relies on such informants to investigate drug trafficking, did not “adequately” oversee the money flowing to its more than 18,000 sources between Oct. 2010 and Sept. 2015, Thursday’s report said.

The sloppiness “exposes the DEA to an unacceptably increased potential for fraud, waste and abuse, particularly given the frequency with which DEA offices use and pay confidential sources,” the inspector general’s office said.

The DEA, for instance, prohibits paying informants who were “deactivated” because of arrest warrants or other serious offenses, but auditors found one had been used after being deactivated for lying during trials and depositions. The source was paid more than $469,000 and used by 13 offices for five more years.

The inspector general’s office estimated the DEA may have paid about $9.4 million to more than 800 previously deactivated sources. The office, however, said it had received shoddy data, and it could not say definitively why they were deactivated.

The report comes after the drug case against the nephews of the Venezuelan first family looks more fragile after prosecutors’ key confidential sources appear to be tainted with credibility problems. The informants have acknowledged improper conduct while receiving money from the United States, including snorting cocaine and hiring prostitutes. It was unclear whether the DEA knew what its informants were doing.

DEA spokeswoman Barbara Carreno said in response to the inspector general’s report that her agency had revised its policies, adding “today’s report highlights the need for continued improvement.”

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Undisclosed informant jeopardizes mass murderer's conviction

Scott Dekraai armed himself with three handguns, drove to the beauty salon in Seal Beach, California, where his ex-wife worked and opened fire. The two-minute rampage in October 2011 left eight people dead and one injured.

Within an hour, Dekraai was pulled over by police and confessed. Numerous witnesses, including a survivor, could testify that he was the shooter. There was no reason to think that convicting him would be difficult.

Nonetheless, Dekraai’s attorney contends, prosecutors decided they wanted some insurance—so they planted an informant in the cell next to him at the Orange County Jail. “Inmate F” struck up a friendship with Dekraai and began asking questions, reported the ABA Journal.

This planting of an informant next to a suspect was not an isolated incident, according to Dekraai’s public defender, Scott Sanders. After a year of investigation, Sanders filed a 505-page motion alleging that the DA’s office and the Orange County Sheriff’s Department had a long-standing practice of planting undercover informants next to high-value defendants represented by counsel. In addition, the DA’s office routinely failed to hand over discoverable evidence and, when asked about it, deputies and prosecutors repeatedly lied, Sanders claims.

If true, such practices would be a violation of civil rights.

The U.S. Supreme Court ruled in 1964’s Massiah v. United States that police officers who use undercover informants to interrogate someone represented by counsel violate the accused’s Sixth Amendment right to an attorney. And failing to turn over exculpatory information on this practice is a violation of the defendant’s 14th Amendment due process rights under 1963’s Brady v. Maryland.

Sanders’ allegations were explosive, triggering a year of hearings that led to an even bigger revelation: For more than 25 years, the sheriff’s department has maintained a database called Tred for tracking jail movements, but had almost never disclosed its information. That means prosecutors who knew about Tred records could have violated Brady dozens, hundreds or even thousands of times—and two decades of convictions could be called into question.

The revelations were so damning that Orange County Superior Court Judge Thomas Goethals disqualified the DA’s entire 250-lawyer office from prosecuting Dekraai. “It is arguable whether or not the evidence currently before this court … reaches the standard of ‘outrageous governmental misconduct,’ ” Goethals wrote in March 2015. “What cannot be debated is the fact that serious, ongoing discovery violations continue to occur in this case.”

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GateHouse: Courtroom integrity and the jailhouse informant

Matthew T. Mangino

GateHouse Media

April 22, 2016

The Orange County, California district attorney convened a committee of legal experts to respond to a jailhouse informant scandal that rocked the office. Men and women were being sent to prison, some for life, based on the unreliable testimony of self-serving prison informants.

Earlier this year the committee issued a scathing report. According to the Los Angeles Times, the committee cited a failure in leadership that compared the office to “a ship without a rudder.”

The committee traced those failures to a “win-at-all cost mentality.”

The win-at-all costs mentality goes well beyond Orange County. The Northwestern Law School’s Center on wrongful convictions found in 2005 that false testimony from informants is the leading cause of wrongful conviction in capital cases in the modern era of the death penalty.

Jailhouse informants are nothing new. In 1819, Vermont authorities could not solve an alleged homicide. The victim was missing, and the authorities sought the help of a jailhouse informant who received a “confession” from a suspect, who was ultimately sentenced to death. Only days before the scheduled execution, the “murder victim” strolled back into town very much alive.

A jailhouse informant is an inmate who contacts law enforcement authorities with information about another defendant facing trial. In exchange for helpful information the government provides a benefit to the informant such as a sentence reduction, reduction in charges or some special privilege.

The incentive to come forward with information has been codified on a federal level. Federal Sentence Guidelines permit a judge to impose a sentence significantly below the sentence required by the guidelines if the offender being sentenced has provided “substantial assistance” in the prosecution of some other defendant.

While prosecutors say jailhouse informants can provide important — and truthful — testimony, informants have little to lose by lying on the witness stand. Rarely are they charged with perjury, according to the Chicago Tribune. It is not difficult for an informant to piece together the details of a crime from newspapers or legal documents and fabricate a cellmate’s “confession.”

Some jailhouse informants provide useful information that is, at times, essential in the search for truth. However, what are policymakers doing to insure fairness and to prohibit unscrupulous inmates from benefiting by their continuing misdeeds?

Connecticut has adopted a specific informant jury instruction that includes the following language, “You must look with particular care at the testimony of an informant and scrutinize it very carefully before you accept it.” Jury instructions are the rules that juries are bound by as they make a decision. The instructions are provided to the jury by a judge immediately before they begin to deliberate.

In 2011, California took it a step further. Governor Jerry Brown signed a bill prohibiting convictions based solely on the testimony of jailhouse informants. The law blocks convictions in cases without corroborating testimony of witnesses or forensic evidence.

Many states are lagging behind in this area of the law. For instance in Pennsylvania and Ohio there are general jury instructions regarding the credibility of a witness, whether the witness is an eyewitness or an informant.

In Pennsylvania, there is a specific instruction available when a witness has a penal interest in providing testimony, such as a witness who has been promised a more lenient sentence in exchange for testifying. In Ohio, there is an instruction for uncorroborated accomplice testimony, “use it with great caution and view it with grave suspicion.” Ohio does not have a similar instruction for informant testimony.

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GateHouse: Prosecutors face off in public quarrels

Matthew T. Mangino
GateHouse News Service
April 18, 2014
Ongoing public battles over the reach and authority of prosecutors has cast a shadow over corruption probes in two states. The American Bar Association established a set of standards for prosecutors to use as a guide for professional conduct and performance. Cases in New York and Pennsylvania have tied these standards in knots.
Recently, Manhattan U.S. Attorney Preet Bharara challenged New York Gov. Andrew Cuomo's decision to dismantle a commission examining public corruption and said his office would take over the investigations.
Bharara has made pursuing corruption at the state capital a priority since being appointed by the president in 2009. The New York Times quoted him as saying during a radio interview, "Nine months may be the proper and natural gestation period for a child, but in our experience not the amount of time necessary for a public corruption prosecution to mature."
In Pennsylvania, the attorney general, a former lead prosecutor in the attorney general’s office and the district attorney of Philadelphia are embroiled in a bitter dispute. The acrimony boiled over after Attorney General Kathleen Kane decided to drop a political corruption probe in Philadelphia.
The spectacle of prosecutors engaging in bitter public debates is unsettling.
The ABA standards provide, “The decision to institute criminal proceedings should be initially and primarily the responsibility of the prosecutor.” In fact, section 3-3.9 (b) provides, “The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction.”
In March, the Philadelphia Inquirer reported that Kane's office shut down a corruption investigation that reportedly involved at least four Philadelphia legislators allegedly accepting improper payments.
The following day, Kane held a press conference saying that she dropped the investigation because it became “non-prosecutable” once charges were dismissed against the informant in the case. Kane also said that the investigation was mismanaged, and that her office found evidence that it was racially biased.
A former lead prosecutor in the attorney general’s office, Frank G. Fina, countered in an Inquirer op-ed. “My colleagues and I conducted our investigation honestly, ably, and with integrity. I am willing to sit down at the same table with Kane … where we can each respond to any questions that are posed about the investigation.”
Philadelphia District Attorney Seth Williams was also sharply critical of Kane. Fina is now a prosecutor in Williams’ office. The attorney general “drops a case supported by hundreds of hours of devastating tapes because the main witness got a deal on a bunch of government fraud charges," he wrote in an op-ed that also appeared in The Inquirer. “As a DA, I think this might be the most disturbing aspect of the whole sordid spectacle. You don't have to be a prosecutor to know this is how it's done."
Kane recently fired off a letter to the Philadelphia district attorney suggesting that "any law enforcement agency interested in taking this case should do so." Williams wrote back immediately, telling the attorney general to hand over all of the original evidence although he had already told The Inquirer that Kane's criticism of the investigation and its key undercover operative have permanently tainted any potential prosecution.
In New York, an area where federal prosecutors have turned their notoriety into elective office — Rudy Giuliani, Chris Christie — Bharara kept railing against Cuomo, "The sequence of these events gives the appearance, although I am sure this is not the intent, that investigations potentially significant to the public interest have been bargained away as part of the negotiated arrangement between legislative and executive leaders."
Asked about reports that Cuomo's aides interfered in the commission's decisions, Bharara told The Times, "I don't know what all the facts are there. … What I can tell you is, it is impossible to overstate the importance of independence on the part of any investigative body."
There appears to be no end to the unseemly and unsettling war of words.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” is due out this summer. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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The Cautionary Instruction: Confidential informants under increasing scrutiny

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
April 18, 2014
In 2013, 246 people were murdered in Philadelphia but the police only received 82 tips about those homicides. Officials say those numbers are indicative of the “no snitching” culture in Philadelphia.
Philadelphia officials are actively trying to recruit informants to help solve murders through innovative social media efforts and good old fashioned rewards. Ironically, at the same time a high profile Philadelphia informant is being eviscerated in the media. Tyrone B. Ali an informant who was helping the Attorney General’s office in a corruption probe has been hung out to dry.
Informants are a hot topic in Philadelphia. Anyone thinking of cooperating with police is certainly going to be influenced by the battle between the attorney general, a former lead prosecutor in the attorney general’s office and the district attorney of Philadelphia.
Last month, Attorney General Kathleen Kane decided to drop a political corruption probe in Philadelphia.
One of the primary prosecutors in the investigation was Frank G. Fina. He is now front and center in this embarrassing public dispute along with his new boss Philadelphia District Attorney Seth Williams.
The dispute is centered on the viability of corruption prosecutions which hinge on the credibility, or lack thereof, of Ali.
A confidential informant is a person usually accused of a crime that either comes forward, or is asked by police, to offer assistance in exchange for leniency. Jailhouse informants, inmates often already convicted, are commonly recruited to testify about statements made by other inmates accused of murder, organized crime, sexual assault and just about any other crime.
The confidential informant has a useful place in the investigation and prosecution of criminal conduct. The closely vetted and reliable confidential informant can provide a wealth of information about an ongoing criminal enterprise. A drug informant can make controlled hand-to-hand purchases of illegal drugs without which there would be few successful drug prosecutions.
At times, confidential informants go sour. In Sarasota, Florida prosecutors dropped or reduced felony drug charges against more than a dozen people after learning that the police informant who set up the drug deals had sex with some of the defendants.
The informant crossed ethical and legal boundaries in what is already a murky world where criminals work with undercover officers under unseemly and often dangers circumstance to document criminal activity.
Although almost invisible to the public, the use of criminal confidential informants permeates the criminal justice system across the country. According to Alexandra Natapoff in Secret Justice: Criminal Informants and America’s Underground Legal System, “These deals typically take place off-the-record, subject to few rules and little oversight. While criminal informants…can be important investigative tools, using them has some serious costs.”

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His book The Executioner's Toll, 2010 is due out this summer.
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Florida looks to review jailhouse informant testimony

Florida is exploring options that would prevent a suspect from going to prison based solely on the testimony of jailhouse informants, unless that testimony was found reliable by a judge prior to trial, reported the Orlando Sentinel.

Florida's Innocence Commission, the blue-ribbon panel working to prevent future false convictions could recommend that Florida become the only state in the nation that would require judges to review the reliability of jailhouse informants — as well as any witness with pending criminal charges — before allowing them to testify at a felony trial.

The state currently requires a pretrial reliability test for scientific evidence, Attorney Henry "Hank" Coxe III, a panel member and former president of the Florida Bar told the Sentinel. If it requires a test for that, it should also for "something this critically important."

According to the Innocence Project, a New York nonprofit that works to free the innocent, 15 percent of all wrongful convictions later cleared by DNA testing featured false testimony by jailhouse informants. In murder cases, it's 50 percent.

A study by two University of California-San Francisco psychologists found that inmates tend to be very good liars. The study found that deceptive inmates were often successful at fooling people. The group they were least able to fool was U.S. Secret Service, who correctly identified deception 64 percent of the time.

Only one state — Illinois — requires a judge to review before trial whether a jailhouse informant's testimony is reliable and only for death-penalty cases, according to the Sentinel.

To read more: http://www.orlandosentinel.com/news/local/crime/os-innocence-commission-informants-20111227,0,6086874.story

Do snitches serve justice?

The Youngstown Vindicator
August 7, 2011

The ill-fated use of a jailhouse informant was chronicled in John Grisham’s first non-fiction book, “The Innocent Man.” Grisham examined the trial, conviction and exoneration of Ron Williamson. The key prosecution witness told authorities she overheard Williamson make incriminating remarks while she awaited her own trial. She had prior felony convictions and this was not her first appearance as a jailhouse informant in a murder trial. At one point, Williamson was five days from execution before he was ultimately exonerated.

Several years ago in Lawrence County, Pa., Thomas Kimbell was prosecuted by the attorney general’s office and convicted of quadruple homicide, in part through the use of a jailhouse informant. Kimbell was later awarded a new trial and found not guilty.

In Greensburg, Pa., Kevin Murphy is being tried for the murder of his mother, sister and aunt. The lead witness is Murphy’s former cellmate. District Attorney John Peck defended the use of jailhouse informants. Peck said he cannot pick and choose which inmates come forward with information. He told the Pittsburgh Tribune-Review, “We very closely scrutinize the information they bring forward.”

‘Confession’

Jailhouse informants are nothing new. In 1819, Vermont authorities could not solve an alleged homicide. The victim was missing, and the authorities sought the help of a jailhouse informant who received a “confession” from a suspect, who was ultimately sentenced to death. Only days before the scheduled execution, the “murder victim” strolled back into town very much alive.

A jailhouse informant is an inmate who contacts law enforcement authorities with information about another defendant facing trial. In exchange for helpful information the government provides a benefit to the informant such as a sentence reduction, reduction in charges or some special privilege.

The incentive to come forward with information has been codified on a federal level. Federal Sentence Guidelines permit a judge to impose a sentence significantly below the sentence required by the guidelines if the offender being sentenced has provided “substantial assistance” in the prosecution of some other defendant. While prosecutors say jailhouse informants can provide important — and truthful — testimony, informants have little to lose by lying on the witness stand. Rarely are they charged with perjury, according to the Chicago Tribune. It is not difficult for an informant to piece together the details of a crime from newspapers or legal documents and fabricate a cellmate’s “confession.”

Some jailhouse informants provide useful information that is, at times, essential in the search for truth. However, what are policymakers doing to insure fairness and to prohibit unscrupulous inmates from benefiting by their continuing misdeeds?

Connecticut has adopted a specific informant jury instruction that includes the following language, “You must look with particular care at the testimony of an informant and scrutinize it very carefully before you accept it.” Jury instructions are the rules that juries are bound by as they make a decision. The instructions are provided to the jury by a judge immediately before they begin to deliberate.

Last month California took it a step further. The legislature passed a bill prohibiting future convictions based solely on the testimony of jailhouse informants. The California District Attorneys Association and other law enforcement groups were opposed to the bill. The law would block convictions in cases without corroborating testimony of witnesses or forensic evidence.

Jury instructions

Pennsylvania and Ohio are lagging behind in this area of the law. There are general jury instructions, in both states, regarding the credibility of a witness, whether the witness is an eyewitness or an informant.

In Pennsylvania, there is a specific instruction available when a witness has a penal interest in providing testimony, such as a witness who has been promised a more lenient sentence in exchange for testifying. In Ohio, there is an instruction for uncorroborated accomplice testimony, “use it with great caution and view it with grave suspicion.” Ohio does not have a similar instruction for informant testimony.

When a witness is a jailhouse informant her testimony needs to be judged by special precautionary rules. Justice demands those rules be codified in a concise and understandable manner.