THE INFORMANT QUANDARY

(This Originally Appeared as a Two Part Article in Pravda.Ru)

To those who have never had any dealings with America’s criminal “justice” system, and to those who have been victims of crime, prosecuting attorneys are often viewed as noble crusaders, fighting for truth and justice against the machinations of “slimy” defense lawyers who will do anything to ensure that the guilty go unpunished.

Even the rhetoric reflects this perception. If criminal defendants are wrongfully convicted, it is simply because prosecutors “made a mistake.” If criminal defendants are acquitted, however, it is because defense lawyers “got them off.” And an acquittal does not mean innocence in the eyes of the legal system. It simply means that the prosecutor was unable to prove guilt, “beyond a reasonable doubt.”

But when I practiced law, I discovered a different reality—one that often inspired me to say, tongue only slightly in cheek, that many prosecutors are nothing more than criminals with immunity.

The legal doctrine known as “absolute immunity” protects prosecutors from being sued by those they prosecute, even if they have been wrongfully accused and/or convicted. The underlying theory is that prosecutors would be unable to do their jobs if they had to worry about a potential lawsuit every time criminal charges were filed.

The truth, however, is that this doctrine causes many prosecutors to abuse the authority of their office, knowing they face little, if any, repercussions for doing so.

Thus, during my legal career, I saw a prosecutor angrily berate a defense attorney for revealing that a police officer’s perjury had resulted in a wrongful conviction; I heard another respond with a dismissive “Oh Well!” after a man she had been prosecuting was found guilty, even though she personally believed he was innocent; I witnessed another prosecutor try to criminally convict a man simply because he expressed a desire to sue the police department for the excessive force used against him; and I watched in disbelief as another excessive force victim—who had been beaten so severely that he had to be hospitalized—was put on trial for resisting arrest, even though the supervising police officer on the scene informed the prosecutor that the man had done nothing to justify the arrest or the beating.

The reason many prosecutors are little more than criminals with immunity is because they share the same ability as criminals—the ability to rationalize anything. For example, when a criminal was asked why he killed an entire family during a residential burglary, his answer was “They were home.” After another was asked why he robbed banks, he replied, “Because that’s where the money is.”

There are two common rationalizations for prosecutors, particularly after they’ve wrongfully convicted somebody: “I just presented the case. The jury did the convicting,” and “I was only doing my job.”

Ironically, even though they work to punish wrongdoers, prosecutors are frequently rewarded for their own wrongdoing. Many, if not most, judges started their careers as prosecutors, as did many elected officials.

Even egregious prosecutorial misconduct often goes unpunished. An example previously cited in Pravda.Ru articles was the Cruz/Hernandez trials in Illinois, where police and prosecutors were criminally charged for allegedly using perjured testimony to send two innocent men to death row. The jury not only acquitted the police and prosecutors, they partied with them afterwards. Who would have thought that in America, the alleged bastion of “justice for all,” conspiracy to commit murder, by using the legal system as your weapon, is not only excused, but celebrated?

Ironically prosecutors who are “crusaders,” are the most dangerous of all. Obsessed with punishing certain crimes, like child abuse, domestic violence or sexual assault—all horrific crimes that deserve punishment when actually committed—prosecutorial zealots often lose all sense of objectivity, all sense of justice, and all sense of right and wrong. Suddenly guilt or innocence becomes irrelevant. What becomes paramount is “sending a message.”

Those who doubt this need only listen to the cable-televised rants of many former prosecutors now working as legal “commentators.” During the infamous Duke University “rape” case—where several members of that university’s lacrosse team were accused of sexually assaulting an exotic dancer—many of these commentators clung vehemently to the belief these men were guilty, even though the strength of the alleged evidence against them diminished with each passing day.

In fact, after the charges were finally dropped and the men officially declared innocent, Jon Stewart of Comedy Central’s THE DAILY SHOW did a montage of CNN’s Nancy Grace, whose histrionics symbolized the zealotry surrounding the Duke case.

Grace would often announce that new developments would “make or break” the case, yet when these developments invariably pointed towards innocence, she would dismiss them as irrelevant.

Not surprisingly, even the innocence of these men did not quell the histrionics of many of these former prosecutors. They simply changed their mantras of “guilty” into “What kind of message does this send? It will make women less inclined to report such crimes!”

Undoubtedly some will argue that there is a difference between former prosecutors who serve as television personalities and current prosecutors who actually try the cases. But not so long ago prosecutorial zealots were rabidly seizing on the “day care/child molestation” hysteria sweeping across America. Scores of innocent people were sent to prison on the word of corrupt cops crusading to find “satanic” cults that didn’t exist, inept, poorly trained interviewers and therapists who incessantly used leading and suggestive questions, and children whose testimony was frequently coached or coerced.

Unfortunately the potential for abuse is not diminished even when prosecutors are not crusaders. Most prosecutors are elected officials, and have to appease the voting public. Thus there is a strong incentive to win “high profile” cases—crimes that are widely publicized and/or cause fear, panic or outrage in the community—even if it means taking a few unethical, and possibly illegal, “shortcuts” to do it.

The inherent difficulty with the legal system is that oftentimes those who work in it erroneously view it as a sporting event. But a defense attorney’s ability to free a guilty person can hardly be called a “victory” for the victims or society. Conversely, a prosecutor who convicts an innocent person may have “won” the case, but this “victory” means that the guilty are still walking the streets.

Due to prosecutorial misconduct and abuses, the courts have made some dents in the immunity armor. Prosecutors acting in “investigative” roles are now only given “qualified immunity”—the same type that is available to police officers. Prosecutors also lose their absolute immunity protection if they knowingly lie in the “charging document,” which accuses a person of committing a crime.

Now the United States Supreme Court is examining another immunity question: Whether prosecutors acting in a “supervisory capacity” can be held liable for the courtroom actions of their subordinates, and/or the policies and practices of their offices.

The case in question, Van de Kamp and Livesay v. Goldstein, specifically deals with the use of informants, one of the most controversial areas of criminal justice.

Police and prosecutors argue that informants are an indispensable part of law enforcement, particularly since the rituals often required to join criminal gangs—being vouched for by a current gang member, being required to submit to a physical beating to demonstrate loyalty and commitment, or being compelled to commit a violent crime—make infiltration by undercover police officers difficult, if not impossible.

But far too often informants have done more harm than good.

Informants often manipulate their status for personal gain. The Federal Bureau of Investigation’s (FBI) use of organized crime figure James “Whitey” Bulger, for example, enabled Bulger to eliminate competition by informing on other organized crime families, then taking over their territories after their members went to prison.

Harvey Matusow, an informant during the “Red Scare” era of the 1950s, later admitted, in a book entitled False Witness, that he had often been paid to provide false testimony about alleged communists, and was even encouraged to lie by Senator Joseph McCarthy and Roy Cohn, McCarthy’s chief legal counsel, after their anti-communist “crusade” catapulted them into the national spotlight.

Also there is a proclivity for law enforcement to conceal the criminal activities of informants, even at the expense of justice. Recently a judge awarded Joseph Salvati and Peter Limone, and the families of Henry Tameleo and Louis Greco, a judgment in excess of one hundred million dollars after it was revealed that the FBI, in order to shield an informant, allowed these four men to go to prison for a murder they did not commit. Salvati and Limone both served over thirty years, while Tameleo and Greco died in prison.

In addition, informants are prone to lie, especially to please their “handlers.” According to a recent article from the Associated Press, the informant in the Van de Kamp case had stated under oath that he received “no benefit” for his testimony, when in fact he had been given a lighter criminal sentence.

This same type of dishonesty was also used to wrongfully imprison former Black Panther Elmer “Geronimo” Pratt in California. Pratt was convicted almost exclusively on the testimony of an informant, who under oath denied being one. There was also evidence that this informant’s testimony was possibly influenced by jealousy, since Pratt, rather than him, had become leader of the Los Angeles Chapter of the Black Panther Party (BPP) after former leaders John Huggins and Alprentice “Bunchy” Carter were murdered in January of 1969 by members of “US,” a black nationalist group founded by Maulana Karenga (aka Ron Everett).

Pratt subsequently spent twenty-seven years in prison, eight of them in solitary confinement, before his conviction was vacated. Even then, despite clear evidence of the perjury used to convict him and a former FBI agent’s admission that Pratt had been framed, the Los Angeles County Prosecutor’s office, then headed by Gil Garcetti, demanded that Pratt remain imprisoned.

Tragically the unlawful methods used to convict Pratt had indirect, and lingering, social consequences. A recent History Channel documentary revealed that many disaffected African-American teenagers in Los Angeles had looked to Huggins and Carter for guidance and structure in their lives. The murder of these two men left a leadership vacuum that Pratt did not have time to fill, since he was arrested a year after Huggins and Carter’s deaths.

Filling this vacuum was fifteen-year-old Raymond Washington, who would ultimately found the gang known as the Crips. During the ensuing years, hundreds of African-Americans would lose their lives due to conflicts with rival gangs or internecine rivalries within the Crips, and hundreds more would become innocent victims of gang violence.

FBI documents, including a memo dated November 29, 1968, would later reveal that the Bureau had intentionally exacerbated tensions between the BPP and “US.” Therefore it appears that a “black nationalist” group headed by the founder of Kwanzaa, and the most powerful law enforcement agency in the world, were directly responsible for the murders of several members of the BPP, and indirectly responsible for the violent, gang-related deaths of countless African-Americans.

Informants are sometimes prone to actually encourage crimes or violence. This way they can get paid for informing on the very crimes and violence they helped to create.

During the late 1960s, an informant named William O’Neal infiltrated the Chicago Chapter of the BPP. During this time the FBI was endeavoring to undermine the efforts made by Fred Hampton, Chairman of the Illinois BPP, to create a “Rainbow Coalition” of political activists from all races. Hampton needed the support of an African-American group known as the Blackstone Rangers. O’Neal covertly worked to deny this support by creating confrontations between the Panthers and the Rangers.

Ultimately O’Neal would provide the FBI and Chicago Police Department with a sketch of Hampton’s apartment. This culminated in a police “raid” where both Hampton and fellow Panther Mark Clark were killed. O’Neal was subsequently paid a “bonus” of three hundred dollars for his “information.” He committed suicide two decades later.

Finally, there is the “snitch” jacket, which is used by law enforcement to falsely label someone an informant. A target of this tactic was William Albertson, a member of the Communist Party USA (CPUSA).

Albertson had rebuffed FBI attempts to recruit him as an informant, so the Bureau placed a “snitch jacket” on him by forging an “informant’s report” in Albertson’s handwriting. According to a court complaint later filed by Albertson’s widow, this “report” caused Albertson to lose his job, and associates and friends ostracized him. He spent the remainder of his life vainly trying to prove he was not an informant.

An equally, if not more, tragic story is that of Anna (Annie) Mae Aquash. A member of the American Indian Movement (AIM) during the late 1960s and early 1970s, Aquash was found murdered on the Pine Ridge Reservation in South Dakota on February 24, 1976. For years it appeared her death would be one of the more than sixty unsolved murders that had occurred on Pine Ridge because of an armed conflict between AIM members struggling for self-determination, and pro-government Indians, known as GOONs. To many AIM members, Aquash’s violent death symbolized the depths to which the United States government would sink to deny Indians their treaty rights and heritage.

But in 2003 two former AIM members were indicted for Aquash’s murder. One, Fritz Arlo Looking Cloud, was convicted, and the second is awaiting trial.

During Looking Cloud’s trial it was revealed that Aquash had not been killed by forces hostile to AIM, but by some AIM members who suspected her of being an informant. These revelations were echoed in the documentary The Spirit of Annie Mae.

These revelations have created a great deal of dissension. Some argue that the government is now using Aquash’s death to paint AIM as a criminal organization, thereby diverting attention from the legitimate grievances that inspired its creation in the first place. Others claim that these belated prosecutions are designed to destroy any possibility of parole or a new trial for imprisoned AIM activist Leonard Peltier. Others, however, welcome these trials as an opportunity to seek justice, albeit belatedly, for a woman who selflessly dedicated her life to the betterment of her people.

There are some who will argue that the legal system ultimately rights its wrongs by financially compensating those who were wrongfully imprisoned or falsely labeled informants: William’s widow Lillie Albertson, Elmer “Geronimo” Pratt, Joseph Salvati, Peter Limone, the families of Henry Tameleo and Louis Greco, and the families of Fred Hampton and Mark Clark were all awarded compensation for the wrongs directed against them or their loved ones.

But, as I stated in a previous Pravda.Ru article entitled Vote For Me (April 8, 2008), many states do not have laws to compensate the wrongfully convicted. In these states the wrongfully convicted, to obtain compensation, have to accomplish the almost impossible task of proving they were prosecuted “in bad faith.”

Unfortunately even the prospect of paying financial compensation may not be enough to dissuade zealous or corrupt prosecutors from misusing informants. From a purely cost/benefit perspective, some government officials probably felt it was worth paying a few million dollars to silence “Geronimo” Pratt behind prison walls, to murder Hampton and Clark, and to put a “snitch jacket” on Albertson. After all, do monetary damages really have any deterrence value when the government has the entire United States Treasury, and all the taxpayers, at its disposal?

Still, as demonstrated by the plethora of wrongful convictions, the leadership vacuum that led to the formation of the Crips, the suicide of William O’Neal, and the murder of Anna Mae Aquash, the direct and indirect social costs for misusing informants can be staggering.

Everyday, whether they want to acknowledge it or not, Americans walk on eggshells. Their money, their homes, their freedom, their very lives can be lost in an instant because of dishonest informants and corrupt members of a legal “system” who believe “sending messages” or “winning” is more important than truth.

David R. Hoffman, Legal Editor of Pravda.Ru