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August 2, 2007 - ACLU Drug Reform Project (US)

Information Regarding Congress’ Recent Hearing On Informants

Return to Drug War News: Don't Miss Archive

On July 19, two subcommittees of the United States House Committee on the Judiciary held an historic hearing to explore the Kathryn Johnston case and the problem of informants, especially in drug law enforcement. The hearing was wonderful. Chairman Conyers and bipartisan members of the Committee have indicated that they are interested in filing federal legislation to address these issues. And the Committee has indicated that it plans to hold additional hearings to examine problems with informants, as well as problems in the larger criminal justice system.

You can watch a video of the entire hearing online, thanks to the House Judiciary Committee. View the written testimony of each witness who testified by clicking on their name: http://judiciary.house.gov/oversight.aspx?ID=356

Read written highlights of key testimony and comments from Committee members during the hearing -- the partial transcription that we compiled is attached.

See the briefing paper proposing federal reforms put together by the ACLU with much input and help from members of this list: www.aclu.org/drugpolicy/racialjustice/30599res20070719.html

View the press release issued by the ACLU and Civil Rights Leader Reverend Markel Hutchins: http://www.aclu.org/drugpolicy/racialjustice/30757prs20070719.html

Review the press coverage appended below.

It was truly amazing to hear the FBI state that they do not have a policy, nor can they agree that there should be a policy, that would require the FBI to notify state or local law enforcement authorities if an FBI informant committed a serious violent felony including murder, whether the FBI had evidence that a person committed the crime or evidence that an accused person was innocent! This was just one of many interesting moments in this hearing.

After the hearing, Drug Policy Alliance and ACLU staff were able to meet with key staff of the committee and Chairman. The committee staff is interested in putting together federal legislation, and the issues that they are most interested in pursuing at this time are (to find out more about these issues, please see the briefing paper, also appended below.

*Guidelines on the use and regulation of informants’ corroboration

* Reliability hearings, pre-warrant and pre-sentencing performance measures data collection requiring federal agents to notify state and local law enforcement when they have evidence that their informant committed a violent felony, or evidence that an accused person is innocent

* Placing conditions on federal funding that will require state and local police to follow the provisions of this legislation

Please share your ideas so that we can put together the most effective and inclusive strategy to take advantage of this critical opportunity, and so that we can show Congress that real public safety is important to all of us!

Ann del Llano, Informant Campaign Coordinator
ACLU Drug Law Reform Project
PO Box 6428, Austin, Texas 78762
512-587-6438
delllano@earthlink.net

Media Covering the Informant Hearing

“Informant In Johnston Case To Testify On Capitol Hill,” Atlanta Journal-Constitution:
www.ajc.com/metro/content/metro/atlanta/stories/2007/07/17/johnston_0718.html

“Former Police Informant to Testify’” WXIA Atlanta:
www.11alive.com/news/article_news.aspx?storyid=100256

“Texas’ Top Narc To Tell Congress About Snitching,” Grits for Breakfast blog:
http://gritsforbreakfast.blogspot.com/2007/07/texas-top-narc-to-tell-congress-about.html

“Lawmakers Hear of Johnston Tragedy,” WXIA Atlanta:
http://www.11alive.com/news/article_news.aspx?storyid=100345

“Congress Focuses On Johnston Case, ‘Police Lawlessness’,” Atlanta Journal-Constitution:
http://www.ajc.com/metro/content/metro/atlanta/stories/2007/07/19/johnston_0720_web.html?cxntlid=inform

“Congress Hears Calls For Reform In Police Use Of Informants,” Associated Press:
http://www.accessnorthga.com/news/ap_newfullstory.asp?ID=95169

“Congress Hears Calls For Reform In Police Use Of Informants,” WIS TV Columbia, SC:
http://www.wistv.com/Global/story.asp?S=6813570

“Congress Hears Calls For Reform,” Augusta Chronicle:
http://chronicle.augusta.com/stories/072007/met_136527.shtml

“Kathryn Johnston Case Gets Congress’ Attention,” Public Broadcasting PBA Newsroom:
http://publicbroadcasting.net/wabe/news.newsmain?action=article&ARTICLE_ID=1115890&sectionID=1

“U.S. House Panel Hears Testimony On Criminal Informants,”
http://www.innocenceproject.org/Content/714.php

“Congress Should Restrict Criminal Informant Use To Prevent Wrongful Convictions, Police Corruption,” Grits for Breakfast:
http://gritsforbreakfast.blogspot.com/2007/07/congress-should-restrict-criminal.html

“DPS Commander O’Burke: Changing Outcome Measures Improved Texas Drug Enforcement,” Grits for Breakfast:
http://gritsforbreakfast.blogspot.com/2007/07/dps-commander-oburke-changing-outcome.html

“Don’t Stop Snitching, Says Natapoff, But At Least Document It,” Grits for Breakfast:
http://gritsforbreakfast.blogspot.com/2007/07/dont-stop-snitching-says-natapoff-but.html

Highlights of the:
Joint Oversight Hearing on Law Enforcement Confidential Informant Practices by the Subcommittee on Crime, Terrorism, and Homeland Security and the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, of the U.S. House Committee on the Judiciary -- July 19, 2007

Watch the entire hearing online and read official written testimony here: http://judiciary.house.gov/oversight.aspx?ID=356

Highlights from:

Congressman Lungren questioning the FBI
Congressman Delahunt questioning the FBI
Narcotics Commander Patrick O’Burke
Law Professor Alexandra Natapoff
Civil Rights Leader Reverend Markel Hutchins
Narcotics Officer Association President Ronald Brooks
FBI Intelligence Assistant Director Wayne Murphy
Mothers in Charge Founder Dorothy Johnson Speight
Chairman John Conyers, Jr. (D-Michigan)
Representative Lungren (R-California)
Representative Gomert (R-Texas)
Representative Johnson (D-Georgia)
Representative Wise (D-North Carolina)
Representative Shelia Jackson-Lee (D-Texas)

Representative Lungren’s (R-California) questions to the FBI witness, and the FBI’s shocking response (near 1:02:00 in the video):

Representative Lungren: “Tell me exactly what the FBI has done, exactly, don’t just tell me you need more money. What have you done specifically to ensure that the problems we saw in the Boston office, the New York office, and some other offices around the country, where the failure to respect local law enforcement to the extent of telling them that CIs who have committed violent felonies, failure to share that information occurred? Is that still occurring today? And is there a policy in the FBI to alert local and/or state law enforcement that you have reasonable evidence that CIs working with you have committed serious violent felonies?”

Assistant Director of the FBI Directorate of Intelligence, Wayne M. Murphy: “Thank you for that question.... I think that the opportunities for what you describe have substantially diminished and the policies and procedures that we have in place, specifically those with regard to activity of a source that may have the possibility to engage in activity that is otherwise illegal, are designed specifically to address the concerns that you spoke to.”

Representative Lungren: “If I could just ask my question once again very simply. That is:

Is there a policy in the FBI to share information with local and state law enforcement officials when you, the FBI, have become aware that your confidential informants have engaged in serious violent felony activity, not all criminal activity, serious violent felony activity, in the jurisdiction of the local or the state authorities?”

Assistant Director of the FBI Directorate of Intelligence, Wayne M. Murphy: “It is my understanding Congressman that there is not a specific documented policy, directly to answer your question sir.”

Representative Lungren: “Well I thank you for that because you may have given me the basis for enacting our legislation to require that. Do you think it should be?”

Assistant Director of the FBI Directorate of Intelligence, Wayne M. Murphy: “I think it’s difficult to make a generalization that will fly in every circumstance. And in fact in some cases there are activities which are closely coordinated with a local law enforcement activity but have equities that affect other local law enforcement activities. We’re being asked to respect and support the acts of one local law enforcement agency against another. And I want to say again, I don’t mean in terms of confrontational but in terms of balancing the equities and the interests of a long term investigation. So I don’t think it would be fair or accurate for me to try and characterize a general solution ....”

Representative Lungren: “All I can say is that if I were still a law enforcement officer in the state of California and you were to tell me that the FBI was reserving judgment about whether to tell me that you have CIs in my jurisdiction that are committing serious violent felonies, I would be more than offended.”

Representative Delahunt’s (D-Massachusetts) follow up questions to the FBI witness, and the FBI’s refusal to respond:

Representative Delahunt: “The scandal occurred in the Boston office in the late ‘90s, about a decade ago. These issues have existed for decades now.... Is there a legal responsibility on the part of the FBI, in the case of murder, to report information to local or state law enforcement agencies?”

Assistant Director of the FBI Directorate of Intelligence, Wayne M. Murphy: “Congressman the Attorney General guidelines in their infinite ...”

Representative Delahunt: “I’m not talking about the Attorney General guidelines. Do they have a legal responsibility, currently, to report evidence, both exculpatory, or evidence of a crime, when a homocide is being investigated?”

Assistant Director of the FBI Directorate of Intelligence, Wayne M. Murphy: “If you will indulge me Congressman, I’d like the opportunity to answer that question offline because there are various circumstances under which that question might be answered differently that would include some of the aspects about how we manage sources, how we make decisions about the management of sources. And I would appreciate the opportunity to answer that question for the record offline.”

Representative Delahunt: “I’m not asking about qualities or guidelines or considerations. Does there exist today, in your opinion, a legal responsibility for the FBI to communicate, in a homicide investigation, either exculpatory information to the state and local authorities, or evidence that would indicate that an individual is responsible for murder? That’s a ‘yes’ or ‘no’ question.”

Assistant Director of the FBI Directorate of Intelligence, Wayne M. Murphy: “I would prefer to answer that question offline if you wouldn’t mind, thank you Congressman.”

Representative Delahunt: “Well I do mind. And I don’t see the reason why that answer has to be provided offline. That’s a legal question.”

Texas Department of Public Safety Narcotics Service Deputy Commander Patrick O’Burke confirmed the failure of arrest-numbers driven drug law enforcement [he describes an alternative that he is implementing in his written testimony]:

“To define success by measuring only the sheer volume of arrests would mean that more arrests would equate with greater achievement. This clearly does not move towards the goal of crime reduction. Arrest numbers also do not attach any quality to that work product when the arrest of one drug user equals the arrest of one drug ‘kingpin.’ Consequently, reliance on output measures alone for grant funding mechanisms or police performance evaluations may actually cause drug enforcement initiatives to fail to seek out reductions in crime.... We need to change some of the paradigms or thinking that law enforcement officers operate under to produce arrests.... I’d like to point out that the officer in Texas who was responsible for the Tulia arrests was nominated for Officer of the Year, and was actually given that award. That’s what I am speaking of when I refer to a paradigm shift. That’s part of Governor Perry’s recognition of the problem that just counting sheer numbers of arrests without accomplishing anything with drug law enforcement was a failed policy.”

Loyola Law School Professor of Law Alexandra Natapoff described why it is dangerous to live in a community where the government has hired a lot of informants:

“What does [the prevalence of snitches in the community] mean for law abiding residents like Mrs. Johnston? It means they must live in close proximity to criminal offenders looking for a way to work off their liability. Indeed, it made Kathryn Johnston’s home a target for a drug dealer. It also means that police in these neighborhoods tolerate petty drug offenses in exchange for information, and so addicts and low level dealers can often remain on the street. It also makes law enforcement less rigorous: police who rely heavily on informants are more likely to act on an uncorroborated tip from a suspected drug dealer. In other words, a neighborhood with many criminal informants in it is a more dangerous and insecure place to live.... This question about the use of confidential informants goes to the heart of the problem of police-community relations. It’s an historical problem in this country, it’s not reducible to the problem of informing or snitching or stop snitching, but I would submit that the 20-year policy on the part of state, local and federal government of using confidential informants and sending criminals back into the community with some form of impunity and lenience, and turning a blind eye to their bad behavior, has increased the distrust between police and community. It has worsened the perception in the community that the police and the government are not responsive to the dangers and the needs that we live with every day. So measures at the federal as well as at the state and local levels to remedy not just the reality of the violence and the lack of control, but the perception that the government is not going to regulate this matter, is of paramount importance and would go to that question of police- community trust.”

She agreed that policy makers must provide direction for law enforcement officers:

“I’d like to second the comments of Commander O’Burke and Officer Brooks that the direction that we give to law enforcement, the goals we set for them, will determine the outcomes and the kind of criminal justice system that we have. The tools that we give them shape the outcomes that we get. If we make it easy to use snitches, they will use snitches and we will get the kind of cases that snitches produce. If we make it more accountable, transparent and rigorous to use snitches, then we will get cases that reflect that policy decision. And those are the kind of decisions that can not be made by the lone officer on the street corner. They need to be made collectively by the executive, judicial and legislative branches.”

Civil Rights Leader and Pastor of Philadelphia Baptist Church Reverend Markel Hutchins made excellent points throughout the hearing:

“Chairman Conyers, you spoke of this so called ‘Stop Snitchin” hysteria that is spreading across the nation, especially in my generation, the hip hop generation. But I would submit that if we are to further the cause of the betterment of the use of confidential informants, we have got to make confidential informants mean more than just snitches. They’ve got to be used as appropriate tools in the fighting of crime. And that can only happen when there are necessary and appropriate guidelines and parameters placed around their use.... To in some way tie this issue of ‘Stop Snitching’ to the use and misuse of legitimate citizens who step forward and say ‘I have evidence, I saw something, I heard something,’ that is a serious disgrace to everyday ordinary citizens. So I think we have to be clear that there is a distinction between the use and misuse of confidential informants, and this so called ‘Stop Snitching’ foolishness that has created hysteria.... There is a problem with the culture of policing in America. And because of that culture, far too often police officers feel that they can do what they want to under the cover of law. This committee has a unique opportunity to help protect even the officers themselves that engage in this kind of behavior by insolating them from the capacity or the potential they have to engage in this kind of corrupt behavior.”

He called for increased accountability in the court system:

“I will submit to this committee that if the fabricated confidential informant that was mentioned and feloniously used in the Kathryn Johnston case had been required to appear before a judge, Ms. Johnston would still be alive today.... The judgment of said magistrate is severely impaired without the ability to directly corroborate the statements of certified confidential informants. It was just too easy for these police officers to go in front of a judge and to lie. They’ve engaged in this kind of practice for years and it’s been happening all over the country.... If police had done due diligence, they would have known that a 92-year old woman lived there in the home by herself. There was no corroboration. There was not any appropriate investigative work done. But I think that probably the most poignant thing that happened to Ms. Johnston is had she not been 92-years old, and had she been my age, 29-30 year old, and a young black man, we might not be having this hearing right now. The real issue, in my view, and I respectfully disagree with Mr. Brooks, is that this problem is much much more widespread than news headlines would suggest. And that is because far too often those who are most likely to be victimized by a system like the one we have now that misuses confidential informants tend to be younger, in lower income communities, they tend to be those that have fewer resources. They are most likely to be profiled, and least likely to have the resources to fight these criminal charges that are put on them because of the misuse of this form of system.... The possibility for not confidential informants, but ghost informants or non-existant informants, is far too great. There needs to be a mechanism put in place that, while recognizing the need to protect the confidentiality of the informant, also certifies that the informant actually exists, and that he or she acknowledges the veracity of the law enforcement assertions in the matter.”

He also pointed out the problem with arrest-numbers-driven law enforcement:

“Anytime that funding and money is tied to arrests and convictions poses a serious problem, particularly for those who look like I look, who live where I live, and who deal with what I deal with on a daily basis.”

National Narcotic Officers’ Association Coalition President Ronald E. Brooks eloquently outlined the seriousness of a law officer’s duties, and agreed with key reforms:

“We need to take an absolute hard line posture when law enforcement breaks the rules, like in any other profession. The conduct at first blush committed in Atlanta, and in Tulia, and in Dallas, and in a host of other places was criminal conduct by law enforcement officers and that conduct should be punished vigorously.... We have been charged with a very solemn duty and a solemn trust, and we can not violate that trust.... We need to instill an ethical culture that says that the ends never justify the means.... We only have one opportunity to have credibility in our courts and in our communities.”

He agreed that arrest-numbers driven law enforcement is bad public policy:

“One of the other witnesses, I think Mr. O’Burke, talked about a paradigm shift, we certainly need to do this. We don’t need to be in a place where everybody is competing for numbers. This should not be where your grant dollars, or your stature in the criminal justice community, is based on how many people you arrested or how many drugs or guns you took off the street. It’s the quality of the work that you do.... We should not tie performance to dollars - when we are out chasing dollars based on numbers of arrests, numbers of seizures, that creates a serious problem....

He agreed that corroboration is such good policy that he would not have it any other way:

“It is absolutely fair to have corroboration. I’ve never done a case without corroboration and I’ve done thousands.”

He also agreed that showing a court more than the standard boilerplate language in order to obtain a warrant, when it is based on an informant, is good policy:

“[Regarding what to show the court in order to obtain a warrant] I think the solution probably lies in good record keeping, solid identification of those informants. We identify our informants by photograph, by fingerprint, by a whole bio.. We keep records on every single case that they do, and those records are available for review by a magistrate in every case. And in the case where the magistrate has a concern, we certainly make those informants available for review in camera by the magistrate having jurisdiction.”

Assistant Director of the FBI Directorate of Intelligence Wayne M. Murphy outlined some of the safeguards that the FBI is now starting to implement in their informant program:

“The [FBI guideline] instructions first challenge whether you need to open a confidential source at all. There are circumstances under which you should consider whether you can acquire the information more effectively, more efficiently, more conveniently without proceeding into that process. But generally the circumstances under which you would open a confidential source is to protect the identity of the source, to protect the integrity of the information that they are providing. The validation process, particularly since we started our reengineered process in June 2007, not only requires a series of steps by the agent originally opening the source, but there is at a minimum a quarterly review by their immediate supervisor. There are a series of checks that are associated with determinations about the specific nature of the source that will require or invoke additional checks and additional reviews. And then there is an annual review process for all sources, a re-validation for all sources, that is done both in the field level and at the headquarters level by a variety of objective players who make judgments about the appropriateness of the source and the continuation of the source.”

Mr. Murphy also recognized the failure of arrest-numbers-driven enforcement, as well as the value of corroborating informant testimony:

“I believe it is a problem [tying funding to numbers of arrests]. We need to be conscious of the behavior that we are creating when we tie funding to statistics. And we need to make sure that we are using an informant program that is based on corroboration.”

Philadelphia’s Mothers in Charge Founder and Executive Director Dorothy Johnson Speight pointed out that witnesses need support from the police, as well as from the community, when they make the decision to testify against a violent criminal:

“We’ve become an integral part of a campaign called ‘Step Up, Speak Up.’ ‘Step Up, Speak Up’ began as a partnership between the Federal Bureau of Investigation, Philadelphia Division’s Community Relations Unit, Mothers In Charge and Clear Channel Outdoor in an effort to encourage citizens living in the Philadelphia area to cooperate with law enforcement.... I understand that it is important for law abiding citizens to come forward to law enforcement, a lot of times it is the fear that undermines the whole process of people wanting to do the right thing.... People are sending a message throughout the community that you should not cooperate with law enforcement, and that undermines the whole process of people wanting to do the right thing. The fear, and the lack of trust of police officers, especially on a county level, that they would be protected from the people who are going to retaliate.... Often time’s people want to do the right thing, but because they are (1) not protected, and (2) not supported, to do that they do not come forward.”

Chairman John Conyers, Jr. (D-Michigan) clearly stated that he intends to file legislation to improve the use of informants, and that he intends to continue to shine light on problems within the criminal justice system:

“We’ve got a serious problem here that goes beyond coughing up cases where snitches were helpful. The whole criminal justice system is being intimidated by the way this thing is being run and in many cases, especially at the local level, mishandled.... A lot of people have died because of misinformation, starting with Kathryn Johnston in Atlanta. Getting the wrong house, they cost the 92-year old woman her life. But then law enforcement tried to intimidate the confidential informant to clean the mess up. Then you get law enforcement involved in perpetrating the cover up of what is clearly criminal activity. So this is not a small deal that brings us here today and we are going to do something about it.... As was observed by Congressman Wise, this is the first time that we have gotten into this matter in more than a dozen years.... But this is only the tip of the iceberg. We’ve got to hold the most thorough hearings in recent American history on the whole question of the criminal justice system, which goes way beyond informants. It’s been picked up and articulated by many of the witnesses, that we are talking about the culture of the law enforcement system and how it’s got to be changed. One hearing starts us off, and I’m very proud of what we have accomplished here today.”

Chairman Conyers commented that the Committee has been unable to get information as to how much money is spent from federal Byrne funds on informants, but he pledged to obtain that information. The Chairman promised that the Committee is going to have an “off the record” hearing with the FBI that will not be open to the public so that they can get sensitive information from the bureau.

Representative Lungren (R-California) indicated his frustration with the current system:

“We lose sight of the fact of how important training, proper procedure, supervision, follow up and consequences are in the entire system.... I have great concerns about the FBI ... a bureau that has fallen down tremendously in the area of confidential informants. A bureau that has, by the report of its own Inspector General, in 87% of the cases that they reviewed, not followed their own procedures.... the failure of the FBI to control their own confidential informants, such that those confidential informants are allowed to commit serious violent felonies in local jurisdictions.”

He announced that he and Representative Delahunt have co-authored legislation to require the FBI to report violent offenses by informants, and exculpatory information, to state and local law enforcement officials.

Representative Gomert (R-Texas) recognized that people must trust their police in order for the system to function:

“It is important to have procedures in place to help people avoid going from being good, decent and upstanding to falling into traps and the attempt to do otherwise.... Confidential informants do require a relationship with someone they can trust, especially when you see violence on people who come forward and do their patriotic civic duty and indicate there has been a crime, so that you don’t need to lose a family member in a needless way. People have to come forward and that takes a relationship.”

Representative Johnson (D-Georgia) emphasized the difference between witnesses and snitches:

“There needs to be some standards, some parameters as you say Reverend Hutchins, that are put on police in their use of confidential informants in that situation.... I certainly believe that citizens should come forward when they have information about a murder or any other crime that took place in their community, just as good citizens. But we should not allow a situation where police are able to accumulate snitches, if you will, in this low-level war on drugs.”

Representative Wise (D-North Carolina) pointed out the long overdue nature of the hearing:

“One of the pervasive thoughts that I have throughout this whole process is that we have spent 6, 8, 10, 12 years unable to have a hearing of this kind that exposes a problem that I think every one of the witnesses, law enforcement and non-law enforcement people who are here, recognize is a serious problem because we have been preoccupied with criminalizing or categorizing members of Congress as being soft on crime and black males as being predators.... One thing that struck me, especially in Mr. Brooks’ testimony, was that there seemed to be an attitude that at least 99% of law enforcement is handling this appropriately - there are some occupational risks and they are acceptable.... For Ms. Johnston this is not a cost-benefit analysis. When someone goes awry in law enforcement, you can’t do a cost- benefit analysis.... Maybe you can tell me what a reasonable approach would be to get us as close to a ‘zero tolerance’ posture as possible.”

Representative Shelia Jackson-Lee (D-Texas) directly held the federal government responsible for bad police work through federal funding incentives:

“Isn’t it tragic that through federal funding we encourage law enforcement to have incentives, or competition, or pressure, to make convictions to keep Byrne funding? .... if you would speak to that question of federal funding that requires you to make deals and get prosecutions to keep that money flowing....”

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