Sunday, January 10, 2010

Natapoff: Shedding Light On Snitches

Alexandra Natapoff's new book on the use of informants in criminal proceedings is a must read. Snitching: Criminal Informants and the Erosion of American Justice, (New York University Press, 2009) It is not that she tells us anything new and really startling; what impresses is that she has managed to pull together a wealth of scholarship and practical insight in a one volume. What's more, she offers sensible suggestions about how to reform the use of confidential informants.

I am generally ambivalent about the contributions of the legal academy to the day-to-day practice of law. Practice conceived isn't theory relieved, I keep telling myself. What can a professor tell a student about standing in a hate-soaked room pleading for a fair trial? The gritty reality of a courtroom doesn't often find its way beneath the fingernails of the chalkboard set.

Somehow Natapoff manages to combine scholarly acument with the solid sense of a practical litigator. She worked briefly as a federal public defender, before joining the faculty of the Loyala Law School in Los Angeles. She has not forgotten what she saw in courtrooms.

Snitches, rats, finks, scum, there are many names for those who trade what they are willing to say for favorable consideration from a prosecutor. Law enforcement depends on the "cooperation" of witnesses from all walks of life. But the information received from so-called cooperators is often unreliable; the Innocence Project and the students at Northwestern University, have demonstrated time and time again through the use of DNA evidence that innocent men and women are convicted due to unreliable chatter.

Natapoff surveys the use of snitches in a variety of contests ranging from routine narcotics case, to white collar investigations, to infiltration of terrorists groups. In each case she notes the tendency of power to become opaque. The lack of transparency in the recruitment, management and use of informants has created an unreviewable and secret parallel universe that cannot be challenged effectively in a court of law. When, for example, is the last time a judge demanded that a police officer with a warrant affidavit bring with him to court the "CI" he allegedly relied upon to support his request for permission to search a person's home? I suspect that more than a few warrants are supported by phantom declarants.

Her calls for reform on solid: She rightly questions whether jury instructions cautioning jurors to use special care in weighing the credibility of snitches are really enough. Ought not there be reliability hearings to determine whehther a snitch's testimony has any probative value? And why not require some sort of corroboration in any case involving a snitch?

This latter proposal hit a nerve. The case I am trying now involves the testimony of several jailhouse informants. They claim my client confessed his role in the kidnap, rape and murder of a 15-year-old girl in 1996. But there is nothing to corroborate this testimony. My client denies any involvement at all. Indeed, in this murder case, the state cannot prove murder at all, given the absence of a body. My client faces trial based on the say-so of inmates a decade and one-half after the so-called facts. How much of what these man report my client said is mere recycled gossip? The jury may never know: Moved by act hunger, that narrative instinct we all possess to impose a structure with a beginning, middle and end to every experience, isn't there a real danger the jury will credit the snitchs' chatter just to put an end to the nightmare that occurs when a child disappears?

Natapoff also suggests creation of an independent authority to screen and finance the use of informants favorable to the defendant in a criminal case. Why should the state be the only party at trial armed with the finances and the means to reward cooperating witnesses? She writes:

"The use of criminal informants is inherently lopsided: a prosecutor can reward an informant source with lenience or money, while a defendant who tries to pay or otherwise reward a potential witness will be accused of bribery or witness tampering. ... To remedy this imbalance ... establish[] a mechanism for rewarding exculpatory testimony, in essence, for creating defense informants."

Amen, I say. This professor gets high marks for nailing just what is wrong with the use of snitches. Yet another reason for the creation of a universal public defender system so that any American accused of a crime, whether poor, middle class or wealthy can match the resources of the state.

I placed a call to Professor Natapoff this morning. I am hoping she will agree to serve as an expert in my case. Juries need to know what she has to say. I suspect the state will object, however. And why shouldn't it? Right now it has a monopoly on the secret manipulation of evidence. Such secrecy is the nectar of tyranny.

Professor Natapoff also has a blog site devoted to snitching. Check it out: