November 23, 2014

Blurred Lines: When FBI Informants Commit Crimes

That the FBI (and law enforcement generally) uses informants to gather information and make cases about other criminals is no secret. But what is law enforcement to do when it's informants want to keep committing crimes while providing information? The answer appears to be, let them.

We are not talking about cooperating witnesses. Those are people who will testify at trial, leaving a narrow window for ongoing criminality. But informants are a different story. They provide intel but aren't witnesses. They can remain in place for years, decades even. And that place is normally smack dab in the midst of the bad guys the FBI handlers want info on, and the same guys who are sensitive to the idea that one of their bunch may be snitching. All this means is that the FBI's informants are under all sorts of pressure to keep on doing bad deeds; crimes that the FBI is on the hook for if they're being committed with the government's blessings.

According to an article in USA Today, the FBI has apparently gave its informants the go-ahead to commit thousands of crimes in 2011, the only year for which data was available. (See here). Logically, it makes sense. If you are relying on criminals to provide info on other criminals which they learn based on their involvement with these criminals, it is inevitable that this involvement will require further criminality. Particularly when politely declining to go along with the boys on robberies would suggest to all concerned that maybe you were working with the government.

But immunizing criminal activity for some is inherently problematic. Essentially, the government is putting itself in the criminal business. It's not just letting stuff slide, it's giving guys the green light to commit crimes like robbery, loan sharking, and the like, all in the name of getting good information against other guys who are committing the same crimes. Or less. Moreover, it creates pressure on informants to come up with info, no matter how dubious, and similarly incentives the agents to credit their sources.

In cases where the informant becomes a witness, his testimony becomes inherently unreliable. Imagine the scenario: the informant, a person with a demonstrated history of lying, cheating, stealing, and engaging in illegal conduct for personal gain, is told by the US Attorney that he will be forgiven for most, if not all, of his past crimes, and will be allowed to continue committing at least some of these crimes, and may well be paid additional money by the FBI for agreeing to participate in this program. All this fine, upstanding pillar of society needs to do is testify that he heard or saw certain things. As long as he is willing to say that he witnessed the targets talking about whatever it is the government needs its witnesses to say, all of his past and current sins will be forgiven, he may be given carte blanche to commit new sins, and will possibly be paid for his troubles. Could there be more facially worthless testimony?

Which leads to the next problem, the pressure on law enforcement to bury the conduct. And what if the informant's conduct is worse than the people he is informing on? You don't forgive Hitler just because he rolled over on Eichmann. The case of Whitey Bulger is referenced by the USA Today article, but a better example might be Greg Scarpa, Sr. (see here for an interesting article about the most renowned mobster you never heard of). He was an accomplished killer and criminal who should have been jail for life, but was given a pass because he secretly gave the government information about the crimes he was committing and the people he was committing them with.

By many accounts, Scarpa openly murdered many, many people over a a period of decades. He famously assisted the FBI in their investigation into the Goodman-Schwerner-Chaney murders (see Mississippi Burning), and lived his life as an out-and-out mobster. Because he was openly killing people and committing various felonies, nobody thought he might be a rat. Yet, he spent years on the FBI's payroll as their number one informant.

It would appear that there was absolutely no way that Scarpa could have avoided arrest absent a couple of high-powered angels. Certainly, once the FBI allowed him to kill without repercussions, he had his pocket aces and had the government over a barrel.

This is not to say that one of his FBI handlers, Lindley DeVecchio, who was unsuccessfully charged with murder years after the fact by Brooklyn DA Charles Hynes, was complicit. Indeed DeVecchio has staunchly the charges and has aggressively gone after Hynes and company in the press for trying to cash in on his arrest with trumped up charges -- an accusation many have made about Hynes. [Note: while a third-year law student, I partially second sat a multi-defendant trial for my now-partner, Jim Neville, in which the defense attorneys pilloried DeVecchio as a corrupt agent who had a vested interest in protecting one of the sides in the then-raging Colombo Family war.]

But I digress. My point being simply that once law enforcement gets into the business of crime commission for the sake of crime fighting, it is immediately sliding down a very slippery slope.

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