a public defender

An all too common scene in trials when a jailhouse snitch testifies is the elaborate song and dance performed by said snitch and the prosecutor to convince everyone (a bit too loudly) that there is no quid pro quo.

“Did you talk to anyone from the prosecutor’s office before coming forward with [insert damning piece of evidence]?”

“No, of course not.”

“Did anyone from the prosecutor’s office promise you anything in exchange for your testimony?”

“Not a damn thing.”

“Have you been told you’d get a reduction in your sentence for co-operating truthfully?”

“I wish I had, but no one has been so kind.”

“Is everything you’ve said been the truth?”

“Do I look like a liar?”

“So why did you come to us with this information?”

“Out of the goodness of my heart.”

That is what I shall henceforth call “the fallacy of the good-hearted informant”. You can picture it now, can’t you? The prosecutor winking, the informant nodding, the defendant eye-rolling, the judge snickering. The jury? Well, that’s the important question.

Does a jury buy this? Does anyone seriously believe that an inmate would testify without any expectation of a reward? Is there any inmate foolish enough to testify without an expectation?

Consider this: information is power in the criminal justice system. Not the truth. Information. When an inmate obtains information, there is but one thought on his mind: how do I use this to my advantage? How do I translate this into a lower sentence?

Sure, the prosecutor and the inmate may never actually utter the words “sentence modification”, but it is an unwritten understanding. That’s part of the game. The State knows it, the inmate knows it. If he cooperates, he will get some consideration. No one wants to be in jail, whether it is for 6 months or 60 years, and any little advantage that can be obtained, will be used. And the State has an incentive to offer modifications, too. If they really do stiff an informant and don’t reduce his sentence, the next guy will hear about it and will be more hesitant to come forward.

Confession is king and a confession to someone who is not law enforcement is even better. So you can bet every penny left in your 401K that three weeks after a conviction in this hypothetical trial, a motion for modification of sentence will be filed and the sentence of the informant will be reduced.

A chilling confession to a heinous crime is worth its weight in years. So, the next time you’re a juror in a criminal case and an informant testifies that he has no expectation of a reduction in his sentence, join the defendant in rolling your eyes and then tell the rest of the panel that he’s full of it during deliberations.

As for the defense attorneys (and in an effort to make this post more than just stating the obvious), what tricks do you find work best in countering this charade? Maybe someone should start keeping track of every time an informant has received a reduction in his/her sentence after testifying in a particular courthouse or with the blessings of a particular prosecutor’s office.

[For more posts on other fallacies and legal fictions, click here.]

Uncorroborated testimony in criminal cases has always been a source of problems and worries. Think about it – you, as the jury, are being asked to believe one person over another, based solely on the tightly controlled testimony presented in court. It amazes me, and I know Miranda agrees, that any jury actually convicts based solely on the testimony of the complainant. How is there not reasonable doubt in every case?

Anyway, we have to start somewhere – and that’s where CA has started. The CA Senate passed a bill today (by a bare majority, no less) that bans the use of uncorroborated jailhouse testimony in convicting defendants.

Assemblyman Mark Leno, D-San Francisco, said jailhouse informants frequently have an incentive to lie. He said Romero’s bill would help prevent wrongful convictions.

Whether it prevents wrongful convictions or not remains to be seen, but he’s got the part about the incentive to lie right. What greater incentive is there than to get a reduction in one’s sentence; a chance at escaping the hell-holes that are correctional institutions a little quicker?

Well, a “snitch” can be cross-examined, you say. True, but the lawyer doesn’t always have all the ammunition he needs. Prosecutors frequently enter into no agreement with the “snitch” other than a wink and a nod, so the snitch can “truthfully” deny any reciprocity when asked during cross-examination:

“Isn’t it true that in exchange for your testimony today, you are receiving a sentence modification?”

[With a straight face] “No. The State has not promised me any modification. I am doing this out of the goodwill that overflows from within my heart.”

“You don’t expect to receive any consideration from the State in exchange for your testimony?”

“I can expect anything, doesn’t mean I’ll get it” OR “No.”

Then what? You’re stuck and sure as heck, three weeks after your client is convicted, the snitch quietly has a hearing where his sentence is reduced by half.

This bill eliminates the problem. No corroboration, no testimony, no incentive to lie.

Now if they could only fix that damn co-defendant’s testimony doesn’t require corroboration rule, we’d have something.

Grits for Breakfast points us to this important and disturbing story published in the L.A. Times a few days ago. It is a report on the murder of 16-year old Martha Puebla, whose name the police used while fabricating an identification.

They were trying to get her boyfriend for an unrelated murder and during their interrogation of him, they showed him a photo array (already a source of many problems) where they forged a circle around his picture with Martha’s initials and an “identification” beneath it.

To drive home his point, [police officer] Pinner laid down a “six-pack” — an array of mug shots that detectives often show to witnesses or victims of crimes. On it, [suspect] Ledesma’s photo was circled, and the initials “M.P.” were written below it. “Those is the guy that shot my friends boyfriend” was scrawled along the margin, followed by Puebla’s signature.

“I don’t even know a Martha,” Ledesma lied.

Police deceit during investigations and interrogations has long been tolerated (see, e.g. Illinios v. Perkins), but this may be one of those instances of the disconnect between theory and reality. In this case, it lead to Puebla’s death:

The next night, Ledesma reached for a pay phone outside his cell. “Cokester,” he said into the receiver, calling his friend Javier Covarrubias by one of his gang monikers, “do you know the slut that lives there by . . . my house? Her name starts with an M . . . I need her to disappear. She is dropping dimes.”

To the gang, Puebla was a snitch and needed to be dealt with.

“Uh huh, like that,” Ledesma told Covarrubias, using a mix of Spanish and English. “But [keep a] low-pro[file]. ..Stay on your toes, homie. And don’t get caught.”

Of course, this is also a product of the anti-snitching culture that has garnered much attention. But the fact remains that as a result of the deceit on the part of these law enforcement officers, a young girl is dead.

Cases like Illinois above have given cops free reign of the interrogation room – everyone’s heard of good cop, bad cop – and license to lie about almost anything, resulting in false confessions.

While I recognize the arguments supporting lying to suspects during interrogations, there has to be some sort of oversight and limits placed on the extent of permissible deceit. Certainly, endangering the life of someone who is innocent and whom the cops should know would be in danger of losing his/her life as a result of their lie should be outside those limits.

The responsibility of law enforcement is to protect citizens and ensure their safety, not to endanger them while engaged in a tunnel-visioned pursuit of “catching a criminal”.

So what is the line? When is deceit okay, if at all? Should it hinge on waiver of Miranda rights? I’ll expound on those thoughts in a later post.

Update: Scott clarifies (in the comments here and in this post) his definition of “rats”. He says he’s referring to defendant X who is guilty of crime 1, who, in exchange for a light prison sentence, tells the government about defendant Y who committed crime 2.

If only it were that simple. Sure that scenario arises, but how do you know that before you represent him? What about the scenario where defendant X and defendant Y might be guilty of crime 1. Defendant X wants to plead guilty because he’s got a long record, evidence is murky and there’s a chance that he might be convicted. At that point, he wants a lesser sentence, so he offers to testify against defendant Y. Is he a snitch? If so, why would you not represent him? By not representing him, are you not doing a disservice to the client that hired you?

Or is the dividing line that your client must be willing to testify against someone else committing only a different crime? I guess I still don’t understand (or perhaps I don’t believe that this the case).

Original post: The story that never dies: Snitching. Should you or shouldn’t you? That is the question that has been bandied about the “practical blawgosphere” for months now and has returned with a vengeance. This morning, after Norm’s latest post, Scott got all atwitter.

SO. Instead of rehashing everything said in the last day (and last few months), I’ll ask this of those that will not represent snitches: What do you mean by snitching? Is it purely co-operation with State in the prosecution of another? Does it include a third-party defense (as in testifying “I didn’t do it, my buddy did”) and what is the difference between the two?

I’ll give you my answer: There is none. Testifying on the stand that you didn’t commit a crime, but you know who did and that person is X, is akin to testifying at the trial of X that X committed the crime.

So you do non-snitchers draw that distinction? If not, why not?

Image from this site.

Grits has another great post (sorry, I have nothing original today) about Anderson Cooper’s upcoming 360 segment about snitching. According to Grits, the segment seems rather lightweight and I’d tend to agree. It involves a single interview of a rapper “Cam’ron” who states unequivocally that he would never, ever snitch.

Grits points to some very good posts about snitching and effectively argues that the 360 segment seems sensationalist more than anything else.

I’m going to put the “lawyer” spin on this. I’ve encountered more than a few criminal defense attorneys who state that they will “never represent snitches” and in fact have told clients as much. What do you guys think? Would you represent a snitch, when it would benefit him by reducing his sentence? I think I would certainly consider it.

A (lone, thus far) comment to Grit’s post raises another interesting question: Would you snitch on a fellow attorney? We all know that the ethical rules require us to report another attorney’s unethical behavior. How many of us do that, though? How many times do we turn a blind eye to some questionable action, with an eye to quid pro quo? Being a lawyer is tough and sometimes we get overzealous and cross a line here and there, but we’ve all come across egregious actions and have let them pass.

Are we any better than Cam’ron?

There are two polls on this: One below on whether you would report a violation of an ethical rule and one in the “polls” sidebar section on whether you’d represent a snitch.

[poll=3]

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