[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
                     LAW ENFORCEMENT CONFIDENTIAL 
                          INFORMANT PRACTICES
=======================================================================


                             JOINT HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                AND THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 19, 2007

                               __________

                           Serial No. 110-112

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov




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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
                 Joseph Gibson, Minority Chief Counsel
        Subcommittee on Crime, Terrorism, and Homeland Security

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
MAXINE WATERS, California            J. RANDY FORBES, Virginia
WILLIAM D. DELAHUNT, Massachusetts   LOUIE GOHMERT, Texas
JERROLD NADLER, New York             F. JAMES SENSENBRENNER, Jr., 
HANK JOHNSON, Georgia                    Wisconsin
ANTHONY D. WEINER, New York          HOWARD COBLE, North Carolina
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
ARTUR DAVIS, Alabama                 DANIEL E. LUNGREN, California
TAMMY BALDWIN, Wisconsin
BETTY SUTTON, Ohio

                      Bobby Vassar, Chief Counsel
                    Michael Volkov, Minority Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

ARTUR DAVIS, Alabama                 TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida    MIKE PENCE, Indiana
KEITH ELLISON, Minnesota             DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan          STEVE KING, Iowa
ROBERT C. ``BOBBY'' SCOTT, Virginia  JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             JULY 19, 2007

                                                                   Page

                           OPENING STATEMENTS

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Chairman, Subcommittee 
  on Crime, Terrorism, and Homeland Security.....................     1
The Honorable Daniel E. Lungren, a Representative in Congress 
  from the State of California, and Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................     3
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution, Civil 
  Rights, and Civil Liberties....................................     4

                               WITNESSES

Mr. Wayne M. Murphy, Assistant Director, Directorate of 
  Intelligence, FBI, Washington, DC
  Oral Testimony.................................................     7
  Prepared Statement.............................................     8
Mr. Patrick O'Burke, Commander, Texas Public Safety Commission 
  Narcotics Service, Austin, TX
  Oral Testimony.................................................    11
  Prepared Statement.............................................    13
Ms. Alexandra Natapoff, Professor of Law, Loyola Law School, Los 
  Angeles, CA
  Oral Testimony.................................................    66
  Prepared Statement.............................................    68
Reverend Markel Hutchins, Philadelphia Baptist Church, Atlanta, 
  GA
  Oral Testimony.................................................    75
Mr. Ronald E. Brooks, President, National Narcotic Officers' 
  Association Coalition, San Francisco, CA
  Oral Testimony.................................................    76
  Prepared Statement.............................................    79
Ms. Dorothy Johnson-Speight, founder and Executive Director, 
  Mothers in Charge, Philadelphia, PA
  Oral Testimony.................................................    96
  Prepared Statement.............................................    98

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Law Review aritcle entitled ``Snitching: The Institutional and 
  Communal Consequences,'' written by Alexandra Natapoff, 
  submitted by the Honorable John Conyers, Jr....................   129

                                APPENDIX

Material Submitted for the Hearing Record........................   191


            LAW ENFORCEMENT CONFIDENTIAL INFORMANT PRACTICES

                              ----------                              


                        THURSDAY, JULY 19, 2007

          House of Representatives,                
      Subcommittee on Crime, Terrorism,            
             and Homeland Security, and the        
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittees met, pursuant to notice, at 10:05 a.m., 
in Room 2141, Rayburn House Office Building, the Honorable 
Robert C. ``Bobby'' Scott (Chairman of the Subcommittee on 
Crime, Terrorism, and Homeland Security) presiding.
    Present from Subcommittee on Crime, Terrorism, and Homeland 
Security: Representatives Scott, Delahunt, Nadler, Johnson, 
Jackson Lee, Davis, Sutton, Gohmert, Coble, Chabot, and 
Lungren.
    Present from Subcommittee on the Constitution, Civil 
Rights, and Civil Liberties: Representatives Nadler, Davis, 
Conyers, Scott, Watt, Cohen, Franks, and Jordan.
    Staff present: Mario Dispenza, Counsel, BATFE Detailee; 
Rachel King, Majority Counsel; Veronica Eligan, Majority 
Professional Staff Member; Michael Volkov, Minority Counsel; 
and Caroline Lynch, Minority Counsel.
    Mr. Scott. [Presiding.] The hearing will now come to order.
    I would like to welcome you to the joint oversight hearing. 
The House Judiciary Committee on Crime, Terrorism, and Homeland 
Security and the Subcommittee on the Constitution, Civil 
Rights, and Civil Liberties are eager to hear testimony by 
witnesses today.
    This oversight hearing is the first in a series that will 
explore law enforcement practices and their impact on civil and 
constitutional rights. Today's hearing is on the use of 
confidential informants, particularly in drug enforcement and 
in capital cases. Law enforcement officials find informants to 
be a vital part of investigatory work as they gather 
information, work undercover and gain general background 
information on crime.
    However, an informant's agreement to work for the 
government can have an enormous negative effect on the criminal 
justice system and on the community. Moreover, departmental 
oversight of local and State use of informants seems to be weak 
and has sometimes led to disastrous civil rights abuses.
    It is important to be clear that the type of informant that 
this hearing is being convened to discuss is not the ones 
addressing--we are not addressing the ones concerned with 
members of the community who work with the police to improve 
their neighborhoods. Nor are we addressing criminal defendants 
who as a part of their plea bargain provide law enforcement 
with factual information and work undercover to expose their 
associates in crime.
    Today we are discussing those who seek to avoid punishment 
for their own crimes or dishonest people who seek payments from 
law enforcement and then provide false information that 
implicates innocent people. We are also addressing the lack of 
departmental oversight over some offices and departments which 
has enabled some officers and informants to perpetrate some of 
the more heinous civil rights violations in recent memory.
    For example, in 2002, an uncorroborated word of an 
informant led to the arrest of 15 percent of a town's African-
American men between 18 and 34. In another city, a corrupt 
police officer's informant planted phony drugs on mostly 
Mexican immigrants who spoke little English. Using bogus field 
drug tests and capitalizing on a defendant's lack of English 
skills, police officers enticed the defendants to plead guilty 
before the actual lab results uncovered the ruse. The informant 
had been paid approximately $220,000 for his services.
    One of the more shocking violations recently is the tragedy 
that befell the 92-year-old Kathryn Johnston of Atlanta, 
Georgia. Last year, Ms. Johnston, an innocent woman, was shot 
to death in her Atlanta home when police officers burst into 
her house to execute a search warrant obtained through a false 
affadavit. Police officers claimed that an informant had bought 
drugs at Ms. Johnston's home, which was a fabrication.
    Perhaps most disturbing is the effect the false testimony 
has in death sentences. One study has shown that almost half of 
the documented wrongful capital convictions have included false 
information from an informant. In at least one instance, a 
death row inmate was within a week of execution before DNA 
testing uncovered the truth that a jailhouse informant seeking 
leniency for her own crimes invented her testimony to send an 
innocent man to death row.
    Despite the impact informants have in the criminal justice 
system, their use has been subject to scant oversight. And 
thanks to the get tough on crime policies and the war on drugs, 
police departments are under increasing pressure to make 
arrests and recruit more informants. Without increasing 
supervisory personnel and enhancing internal controls, 
departmental oversight of informants and rogue police officers 
will not be sufficient.
    To be sure, confidential informants are certainly a 
critical part of police work. And most law enforcement officers 
do not engage in the activity described here. However, we 
cannot ignore the fact over the past two decades law 
enforcement has made more drug arrests and turned more 
defendants into informants than ever before.
    The war on drugs has pressured law enforcement into using a 
great many informants with little internal control over their 
officers and over vetting informants and their information. The 
consequences have not only been outrageous, but sometimes 
deadly.
    The object of these hearings is to consider testimony 
possibly leading to legislation that will increase the 
oversight requirements of informants to prevent abuses like the 
ones that we will hear about today.
    With that said, it is now my pleasure to recognize the 
former attorney general from California, the gentleman from 
California, Mr. Lungren, who is substituting for my colleague, 
Randy Forbes, the Ranking Member of the Subcommittee on Crime.
    Mr. Lungren. Thank you very much, Mr. Chairman. I 
appreciate you and Chairman Nadler holding this hearing today 
on law enforcement confidential informant practices.
    And I welcome all of our witnesses and thank you for taking 
the time out of your busy schedules to be with us today. 
Confidential informants and other human sources are a critical 
investigatory tool for America's law enforcement. Successfully 
dismantling a terrorist network, drug trafficking organization 
or a violent gang often hinges on tips provided by confidential 
informants, including members of the criminal organization 
oftentimes.
    In May, six Islamic militants were arrested for attempting 
to attack the Fort Dix Army Base in New Jersey. In a period of 
just 3 months, the FBI was able to gather information about the 
group from a video and then infiltrate the group using a 
confidential informant. The informant joined the group in March 
2006 and spent the next 15 months aiding the investigation, 
recording the group's plans in detail.
    The informant recorded a number of alarming conversations, 
including one discussing how the group could kill at least 100 
soldiers using a variety of different assault weapons. The six 
men were arrested by the FBI and ICE officials when they tried 
to purchase assault weapons from another man working with the 
FBI.
    Authorities also thwarted the plot to blow up JFK 
International Airport with the help of a convicted drug 
trafficker, who following his second arrest began supplying 
information to Federal investigators. He, too, infiltrated the 
terrorist group and even traveled overseas to meet supporters 
of the plot and assured them that he wanted to die as a martyr. 
I underscore the fact he was a convicted drug trafficker who 
cooperated with officials after his second arrest.
    It is clear that without the help of confidential 
informants in both those cases the attacks on Fort Dix and JFK 
would have been very different and very devastating results. 
Like many other investigative tools, the use of human sources 
is not perfect. And we should always understand that and work 
against its imperfections.
    Working with confidential informants and other sources is a 
delicate business. It is no secret that many sources are 
themselves criminals who will lie and manipulate law 
enforcement for their own personal gain. So law enforcement 
must be savvy in its assessment of its sources and the accuracy 
of their information.
    Unfortunately inaccurate tips from confidential sources or 
misuse of such information by police can have negative, even 
devastating consequences. The 2002 sheetrock scandal in Dallas, 
Texas, where 18 people were arrested and falsely accused with 
cocaine possession demonstrates how corrupt human sources 
combined with dirty cops can lead to the arrest of innocent 
citizens.
    Furthermore, Mr. Delahunt of this Committee and I have co-
authored legislation to require the FBI to report violent 
offenses of confidential informants to State and local law 
enforcement officials. As the inspector general reported, one 
or more guideline violations were found in 87 percent of the 
confidential informant files that they examined.
    And while today's hearing is likely to provide insight into 
the role confidential informants play at the local level, I 
would submit an examination of the use of confidential 
informants at the Federal level should be the principle 
oversight responsibility of our Subcommittee. And I hope we 
will take action on that this year.
    The proper training and oversight of the use of human 
sources can ensure the validity of confidential informants and 
the accuracy of their tips. The fact is that in most instances, 
the use of human sources by Federal, State, and local law 
enforcement successfully assists a criminal prosecution with 
little incident.
    Confidential informants are a necessary if sometimes 
unattractive part of law enforcement. And I hope that today's 
hearing will provide guidance for the effective use of human 
sources.
    As I say, I welcome all the witnesses. But I would 
especially like to welcome Ron Brooks, the distinguished law 
officer of the state of California who has worked for over 
three decades primarily in the area of trying to get drugs off 
our streets and save many of our people. I am proud to say that 
he was, in fact, an employee of mine at the time I was the 
attorney general of California.
    He not only has done an exceptional job as a law 
enforcement officer, but as a leader of California Narcotics 
Officers Association. And I think it will be very beneficial 
for us to hear his point of view of over three decades of 
service and particularly with--while we are obviously not 
perfect in California, and we have mistakes. And we have had 
our number of bad cops.
    The training program, the standards that we establish, 
particularly through our post-training, post officers standard 
and training commission, which I was a chairman at one time, 
which attempts to establish criteria to be used in the training 
of officers through all departments in the state of California 
and the requirement that the leaders of those organizations, 
that is, all police chiefs and sheriffs in the state of 
California must be post certified. And maybe that is where we 
ought to be looking, at the quality of the training and 
certification and the ongoing certification process as it 
affects law enforcement agencies across the country.
    And I thank the Chairman for the time.
    Mr. Scott. Thank you.
    Does the Chairman of the full Committee have a statement?
    Mr. Conyers. Yes, the Chairman would love to make an 
introductory statement.
    Mr. Scott. The gentleman is recognized. The gentleman is 
recognized.
    Mr. Conyers. Thank you very much.
    I commend Chairman Scott, Chairman Nadler for what they are 
doing. And I reach out across the Committee room to thank Dan 
Lungren and Bill Delahunt for the bill they have introduced.
    We have 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.
    Now, I have met with Reverend Hutchins earlier. And that 
may be how the genesis of this hearing. But we have got some 
really big problems here because now we have got Web sites that 
are doing this stop snitching campaign where formerly 
confidential information is now easily accessibly and people's 
lives are being intimidated.
    The whole court system, the criminal justice system, 
especially at the local level--it is easy for us to oversight 
the feds. They are right here, and we are right here. So we 
will watch them.
    But we need a uniform system that emanates from what the 
Department of Justice is doing that will guide a lot of this 
business that is going on that is totally intimidating, is 
coercing the process. People are getting killed with great 
regularity.
    I have just called Elijah Cumming and Chaka Fattah in 
Baltimore and Philadelphia. This business that we are looking, 
listening at and these wonderful witnesses that are here is out 
of control. I just called the Wayne County prosecutor in 
Detroit because we think that it is out of control in Detroit 
as well. And it is probably the case across the country.
    So these are very important hearings. And a lot of people 
have died because of misinformation, starting with Kathryn 
Johnston in Atlanta getting the wrong house that cost a 92-
year-old woman her life. But then law enforcement tried to 
intimidate the confidential informants to clean the mess up.
    So 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 these two Subcommittees together 
today. And we are going to do something about it. And that is 
why I am glad that Professor Natapoff is here and people that 
have been personally involved in this system.
    So I thank the Chairman for indulging me. And I yield to 
Judge Gohmert.
    Mr. Gohmert. I just had a quick question, Chairman. I 
wasn't sure if my ears heard right. Did you say it was easy to 
oversee the Feds here? I just wasn't sure I heard that.
    Mr. Conyers. Yes, it is easy to oversee the Feds here since 
I became Chairman of the House Judiciary Committee.
    Mr. Scott. The gentleman yields back.
    We would like to welcome to the Subcommittee a new Member, 
the gentlelady from Ohio, Betty Sutton. I think this is her 
first meeting.
    And welcome to the Subcommittee.
    We are also joined by the gentleman from Georgia, Mr. 
Johnson, the gentleman from North Carolina, Mr. Watts, the 
gentleman from North Carolina, Mr. Coble. And we just heard 
from the gentleman from Texas, Mr. Gohmert.
    Without objection, the other statements will be made part 
of the record. We have a distinguished panel of witnesses here 
today to help us consider the important issues we currently 
have before us.
    Our first witness will be FBI Assistant Director for 
Intelligence Wayne Murphy. He joined the FBI after more than 22 
years of service at the National Security Agency in a variety 
of analytic, staff, and leadership positions. The bulk of his 
career has been involved with direct responsibility for 
intelligence, analysis, and reporting. He has a bachelors 
degree in political science from John Hopkins University.
    Our next witness will be Commander Pat O'Burke from the 
Texas Department of Public Safety, Criminal Law Enforcement 
Division Narcotics Service. He has more than 23 years of 
service in the Texas Department of Public Safety and more than 
25 years total in law enforcement experience, 16 of which is in 
narcotics enforcement.
    He has been deputy commander for 4 years, supervising field 
enforcement groups for counter-narcotics operations as well as 
supervising multi-county drug task forces as required by Texas 
law. He has a bachelor's degree in criminal justice from Lamar 
University in Beaumont, TX, and is also a licensed polygraph 
examiner.
    Our next witness will be Alexandra Natapoff of Loyola Law 
School in Los Angeles. She has received numerous awards for her 
legal scholarship and is a nationally recognized expert on the 
use of informants in the criminal justice system. Prior to 
joining Loyola faculty, Professor Natapoff worked as a legal 
advocate in low-income neighborhoods in Baltimore as the 
founder and director of the Urban Law and Advocacy Project. She 
received her bachelor's degree from Yale and J.D. from 
Stanford.
    Our next witness will be Reverend Markel Hutchins from 
Atlanta. And the gentleman from Atlanta has asked to present 
Reverend Hutchins.
    Mr. Johnson. Thank you, Mr. Chairman.
    I would like to present to you the Reverend Dr. Markel 
Hutchins, who is a nationally regarded civil rights leader and 
an ordained minister. A protege of numerous veteran civil 
rights icons at just 29 years old, he has emerged as a 
recognized artist around the country and is widely regarded as 
the new kid on the national civil rights leadership block.
    An authority on non-violence and conflict resolution as 
taught by the Reverend Dr. Martin Luther King, Jr. and 
successfully practiced by himself as a high profile activist, 
Reverend Hutchins has led the advocacy efforts to bring forth 
truth about the shooting death of 92-year-old Kathryn Johnston 
who was killed on November 21st of last year by Atlanta police 
officers in a botched drug raid. Since that evening of that now 
infamous police shooting, he has worked tirelessly to bring 
justice and policy change serving as the designated 
spokesperson for the Johnston family.
    And whenever there is a similar episode that occurs in 
Georgia or in the Atlanta area, those families generally call 
upon Reverend Markel Hutchins to come to their aid so that they 
can guarantee that justice is done. And we have had a spate of 
police shootings in Atlanta. In one county, there were 12 
killings last year at the hands of police officers. And not all 
of those were unjustified.
    Reverend Hutchins has and continues to serve on boards, 
committees, and commissions for numerous institutions. A sought 
after public speaker, he is a frequent lecturer to corporate 
labor, government, and academic audiences.
    Ebony Magazine, Black America's premier publication, once 
featured him as one of our Nation's top leaders under 30 and 
most recently as one of America's most eligible bachelors. 
Reverend Hutchins is managing principal of MRH, LLC Consulting, 
chairman of Markel Hutchins Ministries, and senior advocate of 
civilrightsleader.org.
    Please join me in welcoming the Reverend Markel Hutchins.
    Mr. Scott. Thank you. Thank you.
    And welcome, Reverend Hutchins.
    The next witness will be Mr. Ronald E. Brooks, president of 
the National Narcotic Officers Association Coalition 
representing 44 State narcotics officers associations with a 
combined membership of over 60,000 law enforcement officers 
around the Nation. He is a 32-year California law enforcement 
veteran with 24 years of those being in drug, gang, and violent 
crime enforcement. He has been primary investigator, supervisor 
or manager for thousands of law enforcement operations and has 
written policies and procedures for managing undercover 
operations and for managing informants.
    Our final witness will be Ms. Dorothy Johnson-Speight, 
founder of Mothers in Charge. She is the mother of a 24-year-
old Khaaliq Jabbar Johnson who was murdered in December of 2001 
over a disagreement about a parking space.
    In 2003, she, along with other grieving mothers, organized 
Mothers in Charge to prevent violence, educate and intervene 
with our youth, young adults, families, and community 
organizations. There are now over 200 members and supporters of 
Mothers in Charge with chapters in Northtown and Chester and 
Delaware County and in Atlantic City.
    Each of our witnesses' written statements will be made part 
of the record in its entirety. I would ask of each of our 
witnesses summarize his or her testimony in 5 minutes or less. 
To help stay within that time, there is a timing device at the 
table. When you have 1 minute left, the light will go from 
green to yellow then finally to red when the 5 minutes are up.
    Assistant Director Murphy?

 TESTIMONY OF WAYNE M. MURPHY, ASSISTANT DIRECTOR, DIRECTORATE 
              OF INTELLIGENCE, FBI, WASHINGTON, DC

    Mr. Murphy. Good morning. My thanks to Chairman Scott and 
Chairman Nadler as well as the Ranking Members of both of the 
Committees for this opportunity to answer your questions today 
about the FBI's confidential human source program. I would also 
like to acknowledge today the presence of the full Committee 
Chair, Chairman Conyers.
    I have a very brief statement I wish to make. As the 
assistant director for intelligence at the Federal Bureau of 
Investigation, I am responsible for managing the FBI's human 
source programs on behalf of Director Mueller and the executive 
assistant director of the National Security Branch, Mr. Willie 
Hulon. Most important of all, I believe I am accountable to the 
American people for managing a program that is worthy of their 
trust and their confidence.
    I am joined today by Deputy General Counsel Elaine Lammert, 
also from the FBI. The general counsel is a persistent and 
inseparable partner for us in undertaking this responsibility. 
Their sober, deliberate, and objective counsel is vital to 
preserving the integrity of this process. They are a conscience 
and a guide helping to shape both strategic policy and inform 
day-to-day tactical activity in the field.
    The human source program is the life blood of the FBI. Our 
ability to acquire and responsibly manage sources is central to 
the success of our mission. Actions that result from 
information acquired through our human source program have 
profound consequence, not just in terms of the potential for 
operational success, but for how they reflect on the extent to 
which we are an organization that first and foremost honors our 
commitment to uphold and defend the Constitution and protect 
the rights and civil liberties of Americans.
    Key elements of a successful program are sophisticated 
trade craft, thorough documentation, redundant oversight, 
consistency and accountability, measures of effectiveness, and 
a process that confronts assumptions and complacency. We have 
endeavored to invest all of these qualities in our program. And 
we have worked closely with the director of national 
intelligence to ensure that our program is compliant and 
compatible with intelligence community standards.
    The importance of the integrity of this program extends to 
our relationship with law enforcement and intelligence partners 
in the State, local, tribal, and private sector environments. 
Today more than ever those partnerships are enabling the kind 
of transparent and seamless collaboration that is expected of 
us by the people we serve and protect.
    Increasingly we rely on one another's sources to guide 
actions and to trigger operations. It is essential, therefore, 
that in this partnership we work together to secure the 
integrity of that reliance through programs that allow for all 
of us to share best practices for effective human source 
programs.
    The FBI is committed to playing our part. Working closely 
with elements of the Department of Justice to make human source 
management part of the range of issues we address in our 
constantly evolving partnerships at the State, local, tribal, 
and private sector level.
    These challenging times, coupled with the pressure to fully 
implement the expanded expectations for the FBI, create a 
tempting environment for compromise. But such compromise would 
only serve the interests of those who would do us harm.
    Our strength as an organization is reflective of our 
strength as a Nation that is reflected so well in our ability 
to balance liberty with security. I hope today that you will 
find that we have honored that commitment.
    Mr. Chairman, since this is an open hearing, certain 
elements of our policy and our validation program are 
classified. I may be challenged to fully respond to some of 
your questions. I would like to say in advance that if it 
becomes the case, I will take your questions offline in a 
timely and full follow-up and appropriate channels.
    Thank you again.
    [The prepared statement of Mr. Murphy follows:]
                 Prepared Statement of Wayne M. Murphy
    Good morning, Chairman Scott, Chairman Nadler and Members of the 
Subcommittees.
    I am pleased to be here today to discuss the Federal Bureau of 
Investigation's (FBI's) Confidential Human Source Program. As the FBI 
relies heavily on its large contingent of human sources to collect 
information not accessible by other means, both the Attorney General 
and the Director have made clear their expectations that the FBI's 
Confidential Human Source Program must rise to the challenge of our 
current mission, integrate fully with the broader Intelligence 
Community, and set a standard for integrity and quality.
    As the Assistant Director for the FBI's Directorate of 
Intelligence, I am responsible for coordinating and establishing 
standards for human source development, source validation and 
evaluation, and targeting and exploitation across the FBI and ensuring 
standards are met. I set the framework in place for policies and 
procedures that translate our authorities and the direction set forth 
by the Attorney General, into guidance upon which we spot, assess, 
recruit, sustain and validate FBI human sources.
    On December 13, 2006, the Attorney General signed Attorney General 
Guidelines Regarding the Use of FBI Confidential Human Sources, 
mandating FBI compliance by June 2007. To that end, the FBI formulated 
an implementation plan to ensure compliance with the Attorney General 
Guidelines as they pertain to the utilization and administration of FBI 
confidential human sources. This implementation plan consists of a 
number of initiatives that have reshaped the FBI's Confidential Human 
Source Program, both in respect to its processes but also in its 
application to our mission. Today I would like to talk briefly about 
these endeavors.
    Confidential Human Source Re-engineering Project
    In October 2004, the FBI initiated the FBI's Confidential Human 
Source Re-engineering Project. Described as the ``one-source concept,'' 
its key goals were to enhance the consistency, efficiency, and 
integrity of our Confidential Human Source Program across the FBI and 
better align source management with our current mission.
    The one-source concept focused on creating a Confidential Human 
Source Program that operated consistently across locations and across 
investigative programs. Aside from the direct goal of implementing more 
efficient operation and oversight of the program, this approach allows 
for greater efficiency in training and continuity of performance as 
personnel work across individual mission boundaries. Moreover, this 
enables the FBI to more effectively contribute to partnerships as we 
increase our focus on joint operations.
    Core elements of the re-engineering project included the 
development and deployment of a new policy manual, a disciplined 
validation process, and rigorous training and oversight to ensure 
compliance with the guidelines. The guidance set forth in the 
Confidential Human Source Policy Manual and the Confidential Human 
Source Validation Manual went into effect in June 2007.
    The Confidential Human Source Policy Manual establishes FBI policy 
and procedure for the operation and administration of confidential 
human sources. This manual ensures the FBI fulfills its intelligence 
collection and information dissemination mission in compliance with the 
Attorney General Guideline requirements, protocols, rules, regulations, 
and memorandums of understanding with various law enforcement and 
Intelligence Community partners governing the FBI's Confidential Human 
Source Program. Specifically, the manual defines issues such as the 
criteria for source administration, the development and use of 
privileged and sensitive sources, source participation in otherwise 
illegal activity, joint operations with other agencies, source 
payments, a source's domestic and foreign travel, witness security, and 
immigration-related matters.
    The Confidential Human Source Validation Manual establishes 
standardized policy and guidance regarding the validation process for 
confidential human sources. Specifically, this manual codifies the 
process and standards by which the FBI assesses the reliability, 
authenticity, integrity, and overall value of a given source. The new 
validation procedures also provide for a comprehensive and objective 
FBI Headquarters review. In conjunction with the one-source concept, 
the validation process will ensure every FBI source is subjected to a 
level of validation and provides the capability to evaluate sources in 
a broader national context and make decisions accordingly.
    In preparation for the implementation of the Attorney General 
Guidelines in June 2007, the FBI set forth in its implementation plan 
training for all personnel involved in confidential human source 
matters. Central to this effort was an emphasis on training the FBI 
Confidential Human Source Coordinator personnel located in each of the 
56 field divisions. The FBI hosted two identical Confidential Human 
Source Coordinator conferences in Quantico, Virginia, to accommodate 
personnel. These conferences were interactive train-the-trainer 
sessions based on a comprehensive curriculum that included 
presentations, information-sharing resource tools, job aids, and group 
exercises on the new Attorney General Guidelines, FBI confidential 
human source policy, validation, and other pertinent issues related to 
policy. The conference materials and resources were made available to 
the Confidential Human Source Coordinators so they could return to 
their field offices to conduct training by the compliance date of June 
13, 2007.
    In addition to the above initiatives, the FBI has worked closely 
with our Intelligence Community counterparts to ensure we are building 
standards that will meet or exceed the expectations established for the 
Intelligence Community regarding the handling of human sources. The FBI 
recently developed a comprehensive human intelligence (HUMINT) 
development and collection course to significantly enhance our ability 
to routinely and systematically identify, target, develop, and operate 
human sources of high intelligence value. The Domestic HUMINT 
Collectors Course is a six-week certification course designed to 
inculcate Special Agents with the ability to engage in the full cycle 
of clandestine human source acquisition, to use passive and aggressive 
countersurveillance techniques, and to conduct clandestine acts from an 
overt platform. The first iteration of the Domestic HUMINT Collectors 
Course began in June 2007; participants included 26 HUMINT collectors 
from five field offices and two task force officers--one from the New 
York Joint Terrorism Task Force and one from the Washington Field Joint 
Terrorism Task Force.
                     commitment to joint operations
    The success of our Confidential Human Source Program is dependent 
upon a strong and trusted partnership with our Intelligence Community 
and state and local law enforcement colleagues.
    Over the past year, the FBI enhanced its relationships with the CIA 
and various military entities, to include Counterintelligence Field 
Activity, Foreign Counterintelligence Activity, Special Operations 
Command, and the US Army, US Air Force, Office of Special 
Investigations, and Defense Intelligence Agency. In particular, the FBI 
is building upon its relationship with the CIA and the US Department of 
Defense to ensure we undertake a program that leverages individual 
strengths, incorporates the benefit of our collective experiences, and 
supports the goals of the Intelligence Community. These efforts at 
increased cooperation are made with due regard for the appropriate role 
of the CIA and the military in the United States.
    We have engaged across a range of fronts to strengthen our own 
program and contribute to the broader human source capacity of the 
Intelligence Community at large. Efforts to date have included 
establishing trusted professional working relationships with our 
counterparts, joint training and training development, joint duty 
assignments, joint targeting and source development, and joint 
reporting. Our relationships are marked by recurring meetings at the 
working level and a commitment on the part of leadership to meet the 
expectations for a truly national service.
    Furthermore, the FBI recognizes the need to engage our state and 
local law enforcement counterparts. We have begun training federal, 
state, and local law enforcement agencies that provide representatives 
to the Joint Terrorism Task Forces and the Field Intelligence Groups 
located in field offices around the country. The FBI utilizes 
Confidential Human Source Coordinators in the field as trainers to 
instruct all FBI agents and task force officers regarding compliance 
with the Attorney General Guidelines, the Confidential Human Source 
Manual, and the Confidential Human Source Validation Manual as well as 
techniques in the identification, assessment, recruitment, and 
operation of human sources. Task force officers are co-case agents for 
numerous confidential human sources operated by FBI agents and jointly 
manage sources' activities in counterterrorism, counterintelligence, 
cyber, and criminal investigations. The ability to address HUMINT in a 
cooperative working environment encourages other law enforcement 
agencies to share their intelligence base with the FBI, resulting in an 
enhanced macro view of the local and regional domains.
                               conclusion
    The American people have entrusted us with a tremendous 
responsibility, and we are committed to living up to their 
expectations. To that end, we must be an engaged, forward-leaning 
partner in the broader Intelligence Community as well as with our state 
and local law enforcement counterparts; we must ensure our standards 
and processes meet the criteria of integrity and quality; and we must 
conduct our mission with an unwavering commitment to the defense of 
civil liberties and the protection of privacy rights.
    Thank you for time. I look forward to answering your questions.

    Mr. Scott. Mr. O'Burke?

 TESTIMONY OF PATRICK O'BURKE, COMMANDER, TEXAS PUBLIC SAFETY 
            COMMISSION NARCOTICS SERVICE, AUSTIN, TX

    Mr. O'Burke. Good morning. I would like to thank the 
Chairman and honored Committee Members for inviting me to 
appear before this hearing. In 2002, Texas Governor Rick Perry 
recognized significant problems that occurred within drug task 
forces that were funded through the Edward Byrne Memorial Fund 
in Texas.
    In a sweeping reform, Governor Perry directed that the 
Texas Department of Public Safety undertake operational 
oversight of all such Byrne-funded drug task forces in Texas. 
There have been other examples cited here today and in Texas.
    However, the problems that occurred in Tulia, Texas most 
underscore the core issues that eroded public confidence in 
drug law enforcement in Texas. The Department of Public Safety 
Narcotics Service quickly identified factors such as poorly 
defined output measures for program management, a lack of 
standardized operating policies and procedures, and poor 
informant control and management as key contributors to Tulia 
and other similar failed drug enforcement efforts.
    Measuring police performance and achieving results and 
reductions or absence of crime, in particular, violent crime, 
is a difficult task. We work closely with the governor's Office 
of Criminal Justice Division to develop meaningful strategies 
and performance measures that we could link to such drug 
enforcement efforts.
    It is always necessary for an effort to have activities 
monitored such as work products in order to determine if the 
initiative is working within the scope and mission of its 
direction. And as such, we have defined output measures that 
have been typically recorded for drug law enforcement. These 
usually included numbers of investigations or investigative 
reports written, numbers of arrests for narcotics law 
violations, and amounts of illegal drugs seized.
    However, the above output measures alone cannot adequately 
gauge if any success is being achieved in actually disrupting 
the illegal distribution of drugs. To define success by 
measuring only sheer volumes of arrest numbers would mean that 
more arrests must equate with greater success. This clearly 
does not move us toward the goal of crime reduction.
    Arrest numbers also do not attach any value to that arrest 
when 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.
    Consequently, the narcotics service worked to develop 
outcome measures that will more adequately define if we are 
achieving desired results. And we looked at other measures such 
as changes in overall crime rate, reduction in drug overdoses, 
changes in pricing and purity of illegal drugs, and surveys of 
drug use by certain population as other outcomes that have been 
reported.
    However, these are very rarely linked uniquely to the 
individual law enforcement effort. As such we work to define 
that law enforcement was most uniquely suited to working 
against drug traffickers who we defined as individuals who are 
operating and dealing drugs for criminal profit as a motive and 
drug trafficking organizations as five or more who worked 
together in concert to sell drugs outside of their immediate 
group.
    We then looked at intelligence collection as a method of 
how initiatives drove their investigations, how they directed 
their resources, and how they could subsequently impact these 
criminal groups. As such, we defined the number of drug 
trafficking organizations dismantled, the percentages of 
arrests that could be attributed to proactive work against 
targeted trafficking organizations and members. And lastly, we 
looked at percentages of total arrests that we defined as end 
users.
    The narcotics service worked to define the end user as the 
intended user of illegal who is generally motivated by 
addiction. Impacting the behavior of end users may involve law 
enforcement actions, but are generally more effectively treated 
and managed by treatment, corrections, and rehabilitation 
options. As such, directing law enforcement investigations 
against these individuals should receive limited or no priority 
from drug enforcement initiatives that seek to disrupt illegal 
trafficking of drugs.
    This overall change in strategy was necessarily accompanied 
by standardized operational policies that mandated professional 
standards, including background checks, ethical conduct 
practices, informant management requirements and protocols, and 
best practices for conducting investigations.
    Lastly, we developed an outcome measurement tool that 
adequately defined and collected data in order that we could 
look at program evaluation and accountability. I think it is 
timely and appropriate for us to clearly define the role of law 
enforcement in comprehensive drug control policy efforts to 
achieve reductions in drug abuse.
    Drug control policy efforts must view law enforcement as 
only a piece of comprehensive programs, complemented by drug 
education, treatment, and rehabilitation. Partnerships with 
legislative bodies and law enforcement leadership are necessary 
to properly develop purpose-driven enforcement strategies. And 
these must have effective outcome measures to positively 
identify and reward professional police efforts and provide for 
accountability.
    Thank you.
    [The prepared statement of Mr. O'Burke follows:]
                Prepared Statement of J. Patrick O'Burke








                              ATTACHMENTS


































































































    Mr. Scott. Thank you very much.
    We have been joined by the Ranking Member of the 
Subcommittee of Constitution, Jerry Nadler--excuse me, Chairman 
of the Subcommittee--okay, Jerry Nadler from New York. And he 
will have comments in a few minutes.
    And the gentleman from Tennessee, Mr. Cohen, has also 
joined us. Thank you.
    Professor Natapoff?

 TESTIMONY OF ALEXANDRA NATAPOFF, PROFESSOR OF LAW, LOYOLA LAW 
                    SCHOOL, LOS ANGELES, CA

    Ms. Natapoff. I would like to thank Mr. Chairman and the 
Members of these Committees for the honor of appearing before 
you today. As everyone has acknowledged this morning, the use 
of criminal informants is an important part of our legal 
system. It is a broad topic. I would like to focus on just one 
facet of it today. And that is the facet that makes the Kathryn 
Johnston tragedy a common and predictable occurrence.
    The government's use of criminal informants is largely 
secretive, unregulated, and largely unaccountable. This is 
especially true in connection with street crime and urban drug 
enforcement. It is this lack of oversight and quality-control 
that leads to wrongful convictions, to more crime, to 
disrespect for the law, and even sometimes official corruption. 
At a minimum, we need more data on and better oversight of this 
important public policy.
    The Kathryn Johnston tragedy reveals the special dangers 
associated with the use of criminal informants or snitches in 
poor, high-crime, urban communities. Informants are a 
cornerstone of drug enforcement. It is sometimes said that 
every drug case involves a snitch.
    And drug enforcement is most pervasive in poor urban 
communities like the so-called Bluffs where Mrs. Johnston 
lived. In these neighborhoods, high percentages of the young 
male population are under criminal justice supervision at any 
given time. Here in the District of Columbia, for example, it 
is estimated to be over half.
    And a high proportion of these arrests are drug related 
where, it is common for police to pressure drug arrestees and 
addicts to provide information in exchange for lenience. As a 
result, many people are likely to be informing at any given 
time.
    What does this mean for law abiding citizens like Mrs. 
Johnston? It means that they must live in close proximity to 
criminal offenders looking for ways to work off their 
liability. It means that police in these neighborhoods will 
often tolerate low-level drug offenses and other offenses in 
exchange for information.
    It means that law enforcement may be less rigorous. Police 
who rely heavily on informants are more likely to act on an 
uncorroborated tip from a suspected drug dealer, as occurred in 
this case. In other words, a neighborhood with many criminal 
informants in it is a more dangerous and less secure place to 
live.
    The negotiations between criminals and the government take 
place largely off the record, without rules or public scrutiny. 
The Atlanta police could plant drugs on Fabian Sheats--you 
recall the suspected drug dealer and the first informant in 
this case--because the culture of snitching told them that it 
would never come to light.
    The fact that the information he gave them was wrong is 
also a common and infamous aspect of snitching. The Atlanta 
police could fabricate an informant in order to get a warrant 
because the culture of snitching told them that they would 
never have to produce an actual person in court. In other 
words, it is this culture of secrecy, of rule breaking, of 
disrespect for the law and for the truth that led to the 
Kathryn Johnston tragedy.
    I have made several recommendations for legislative action 
in my written testimony. I would like to mention just one. We 
need to start collecting aggregate data on the use of 
confidential informants at the State and local as well as 
Federal level. Even police and prosecutors in the main do not 
know the extent of the use of informants in their own 
jurisdictions, how many crimes they help us solve, how many 
crimes they themselves get away with.
    Most State and local jurisdictions have no mechanism for 
evaluating or regulating the ways that informants are used. The 
Federal Government has begun to address this problem. And so, I 
would like to conclude with an insight from the FBI.
    In its budgetary request to Congress this year, the FBI is 
seeking funds to create a new data monitoring system for 
confidential informants. And it tells us, ``that without the 
personnel necessary to oversee the monitoring system, the FBI 
will be unable to effectively ensure the accuracy, credibility, 
and reliability of information provided by more than 15,000 
confidential human sources.''
    I submit to these Committees that if the FBI cannot ensure 
the reliability of its confidential informants without better 
data and monitoring, then State and local law enforcement 
agencies like the Atlanta Police Department cannot be expected 
to, either. And we will see more tragedies like Kathryn 
Johnston.
    Thank you.
    [The prepared statement of Ms. Natapoff follows:]
                Prepared Statement of Alexandra Natapoff














    Mr. Scott. Thank you.
    Reverend Hutchins?

 TESTIMONY OF MARKEL HUTCHINS, REVEREND, PHILADELPHIA BAPTIST 
                      CHURCH, ATLANTA, GA

    Reverend Hutchins. Good morning, Mr. Scott, Mr. Nadler, Mr. 
Lungren, Mr. Conyers, Mr. Johnson. Perhaps one of the greatest 
civil rights tragedies of this century happened on November 
21st when 92-year-old Kathryn Johnston was gunned down in a 
hail of bullets in a botched drug raid at the hands of Atlanta 
police officers.
    The evening of that shooting I received a telephone call 
from one of the members of my organization saying that a 92-
year-old had been killed and that police were lying. As it 
turned out, the police not only lied to get the search warrant, 
they lied about the existence of drugs.
    We later learned that they fabricated a story in order to 
go around an overt police and procedure. Instead of going 
through the appropriate channels of actually having a 
confidential informant to purchase drugs, they decided to cut 
corners and go and lie to a magistrate and say that a C.I. had 
purchased drugs when no such C.I. existed. We began to get 
involved with Ms. Johnston's family, found that she was a star 
person at 92 years old, had never been in the hospital, took no 
medication at all, not even aspirin.
    Ms. Johnston represented in some real sense every 
American's mother and grandmother and great grandmother. We 
appealed to the Justice Department to launch a full 
investigation. They granted that investigation.
    The Justice Department's investigation found that the 
officers involved were not the only officers that were engaged 
in this kind of behavior. Therefore, subsequent to the three 
police officers who were indicted, two pleading guilty in the 
Johnston shooting, there have been other police officers who 
have now been held and will continue to be held criminally 
responsible for their actions.
    The Atlanta police officers involved in the Johnston 
shooting sought to cover up their actions by planting drugs in 
the home of a 92-year-old woman. These same police officers 
called upon one of their star confidential informants, an 
experienced long-time paid C.I. from the Atlanta Police 
Department, and tried to convince him and intimidated him 
wanting him to lie to cover their tracks. When he refused to do 
so, he was threatened.
    In fact, he was kidnapped by Atlanta police officers, 
placed in the back of a patrol car, and ended up having to run, 
open the door of a police car from the inside, jump out and run 
through the streets of Atlanta, a long time paid confidential 
informant. I am happy to say to you that that confidential 
informant joins me today and stands--and sits right behind me, 
25-year-old, Alex White.
    Shortly after the announcement of the Johnston--of the 
police officers' guilty pleas in the Johnston shooting, Mr. 
Chairman, we began to hear from people across the country that 
this was not an isolated incident, that confidential informants 
were being lied on to judges by narcotics officers in major and 
smaller police departments across this Nation. Therefore, we 
came to Washington, met with Chairman Conyers and numerous 
other Members of this Committee and asked that we would go 
forward with hearings like this one and others around the 
country that would expose a pattern of abuse of people's civil 
rights and civil liberties at the hands of those who are 
entrusted to serve and protect.
    I agree with the gentleman from California. Confidential 
informants are an invaluable tool in law enforcement. However, 
we suggest that we need better restrictions, more appropriate 
guidelines, and necessary parameters around the use of 
confidential informants. And Kathryn Johnston's life and legacy 
will be furthered if we are able to do that.
    Confidential informants, on our view, ought to be forced to 
appear before judges. That will, on some level, help to 
eliminate the kinds of tragedies that we have seen in Atlanta 
and we have seen in other parts of the country.
    Chairman Conyers, you spoke of this so-called stop 
snitching 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 have got to be used as appropriate tools in the 
fighting of crime. And that can only happen when there are 
necessary and appropriate parameters and guidelines placed 
around their use. Thank you.
    Mr. Scott. Mr. Brooks?

  TESTIMONY OF RONALD E. BROOKS, PRESIDENT, NATIONAL NARCOTIC 
       OFFICERS' ASSOCIATION COALITION, SAN FRANCISCO, CA

    Mr. Brooks. Chairmen Scott and Nadler, Mr. Lungren, Members 
of the Subcommittee, thank you for allowing me to testify 
before you on this very important topic. I represent the 
National Narcotic Officers Association's Coalition, some 60,000 
police officers on the front lines of drug enforcement around 
this Nation.
    I have served as the primary investigator, supervisor or 
manager for literally thousands of drug and gang investigations 
during my career. I have been a police officer my entire adult 
life. And in those 32 years, I have known very few police 
officers who set out to break the rules or do anything that 
would discredit them, their families or our profession.
    Unfortunately I do know of officers who have unwittingly 
made poor decisions involving the use of informants due to 
insufficient policies, a lack of supervision or inadequate 
training. Some of these regrettable decisions have resulted in 
the arrest of innocent persons or even much worse.
    We must reduce the risk of using informants. And I believe 
the solution lies with training officers, supervisors, and 
managers to use sound informant policies which include 
corroborative evidence.
    The mere thought of using an informant is distasteful for 
many people. The use of informants by law enforcement agencies 
invokes the thoughts of big brother, political spying, and the 
government's efforts to undermine the anti-war movement during 
Vietnam. But despite the negative connotations regarding 
informant use, it is important to be mindful of the reality of 
conducting drug, gang, and terrorism investigations.
    Drug trafficking organizations, street gangs, domestic and 
international terrorist organizations and closed and violently 
guarded societies. The trade craft employed by modern career 
criminals is often as sophisticated as those employed by law 
enforcement and intelligence professionals. Confidential 
informants, most working for pay or legal consideration and 
based upon their truthful and honest cooperation with law 
enforcement have the bona fides that allow them access to 
criminal organizations.
    I have worked undercover on hundreds of occasions. And in 
almost every case where I was the undercover officer and in the 
vast majority of the thousands of other investigations that I 
have conducted or supervised there would not have been a 
successful conclusion had it not been for the information 
provided or access gained through the use of an informant.
    On a few occasions, however, this authority has been 
severely misused. The 1999 arrest of 46 persons in Tulia, 
Texas, has rightfully been called one of the worst miscarriages 
of justice in memory. These arrests were based on the work of a 
rogue mercenary cop and an informant working under the legal 
authority of a small town sheriff without benefit of policy, 
direction or supervision. And there are certainly other cases 
where the improper use of informants exacerbated by a lack of 
adequate policies and training has resulted in the serious 
miscarriage of justice, including the one recently described in 
Atlanta, Georgia.
    But like most other professions, law enforcement and the 
use of informants by police officers should not be judged or 
condemned simply because of a relatively few instances of 
mismanagement and wrongdoing. One example of a program that has 
been successful in addressing drug and gang crimes and in 
protecting our communities are the multi-jurisdictional task 
forces funded through the Byrne justice assistance grants. 
These task forces are co-located in shared facilities with 
common policies, consistent supervision, and governance 
provided by all of the participating executives.
    This arrangement has increased the professionalism of drug 
enforcement and reduced the incidents of misconduct or 
wrongdoing. We must focus on training. When used in conjunction 
with well-written policies and effective supervision, good 
training has demonstrated that a professional environment and 
adequate supervision can dramatically reduce the potential for 
the abuse of law enforcement's authority.
    Unfortunately many States don't have the standardized 
policies or training mandates or even the funds available. 
Fortunately a successful example of a training program that can 
dramatically mitigate the risk of using informants is free of 
charge to State, local, and tribal officers throughout the U.S. 
through the Bureau of Justice Assistance Center for Task Force 
Training. This intensive 3-day workshop dedicates most of its 
time and curriculum to the development and implementation of 
sound policies, risk management, and informant procedures and 
ethics.
    Unfortunately funding for this program has not been 
included in the House CJS appropriations bill for 2008. The 
program is critical and is a necessary step toward stopping 
these abuses.
    It is important to strive to improve law enforcement 
professionalism and to reduce instances where innocent people 
suffer because of improper police. But when regrettable events 
occur, the answer is not to regulate or hinder the appropriate 
use of informants. The solution is to provide adequate 
resources and training.
    There has long been a saying in law enforcement. Good 
informant, good case. Bad informant, bad case. No informant, no 
case. And that saying captures the critical nature of our work.
    When it comes to the proper use of informants, we must do 
more on training, supervision, and implementation of sound 
policies. When we appropriately manage informants, great cases, 
the ones that make our communities safer, are the results.
    But when informants are not properly used, the results 
could be devastating. But without the ability to freely use 
informants, law enforcement would have very few significant 
successes, organized criminals would operate with impunity, and 
the safety of our Nation would be in jeopardy. Thank you.
    [The prepared statement of Mr. Brooks follows:]
                 Prepared Statement of Ronald E. Brooks


































    Mr. Scott. Thank you very much.
    We have been joined by the gentleman from Massachusetts, 
Mr. Delahunt. His legislation has been already referenced 
earlier today. And the gentlelady from Texas, Ms. Jackson Lee 
has joined us.
    Ms. Speight?

  TESTIMONY OF DOROTHY JOHNSON-SPEIGHT, FOUNDER AND EXECUTIVE 
         DIRECTOR, MOTHERS IN CHARGE, PHILADELPHIA, PA

    Ms. Johnson-Speight. Good morning, and thank you for the 
opportunity to speak before this Committee this morning. My 
name is Dorothy Johnson-Speight and I am the executive director 
and founder of Mothers in Charge.
    As a mother of a teenager living in urban America, I always 
lived with some level of fear. The statistical data provides 
the grim facts. Homicide is the leading cause of death among 
African-American males between the ages of 14 and 24.
    These homicides are often perpetuated by offenders with 
long lists of criminal activity that also includes murder. I 
don't think any mother or father should live with the fear and 
fact that their children may not be alive to see 25 because of 
violence in the community.
    My son Khaaliq graduated from the University of Maryland, 
and a few years later was going back to complete his graduate 
degree. Our plan was that we would work together and work with 
children at risk. He would get his master's, and I would get my 
Ph.D., and we would practice together.
    In December, only 6 months after his 24th birthday, I 
experienced my worst nightmare. My son became one of those 
statistics. At age 24 and-a-half, he was shot to death on the 
streets of Philadelphia over a parking space.
    This is my son Khaaliq. This is his picture graduation from 
the University of Maryland in 1999.
    The person responsible for my son's death was caught over 
the next few days. A month later, while watching the news, I 
saw a plea from a mother who lost her son in the same 
neighborhood. She was looking for someone to step up and speak 
up with information in the fatal stabbing of her 19-year-old 
son, Justin. She had only a few clues, but those clues seemed 
to be familiar to me.
    Because of my need to come forward with any information 
that may be pertinent to her case, I went in search to find 
this mother. After our meeting, we learned that the same angry 
man that murdered my son, Khaaliq, had murdered her son, Justin 
Donnelly, 5 months earlier.
    This man was seen in the community several times after 
Justin's death. And because he was known as such a violent 
person in that community, the people of that community were 
afraid to come forward. They had information, but he walked the 
streets for 5 months until he murdered my son.
    I am constantly reminded that if one person had provided 
the necessary information after Justin's murder, maybe Khaaliq 
would still be alive today. I live with that awful pain every 
day.
    The murderer was ultimately found guilty of first degree 
murder for both crimes and is currently serving two life 
sentences. Although justice was served, it does not stop the 
pain that I feel every day, and it will not bring back our son.
    This is a picture of 19-year-old Justin Donnelly. And his 
mother is here with me today.
    Both of our children were killed by the same person four 
blocks away. And people had information, but they were afraid 
to come forward.
    In 2003, Ruth and I took our anger and our pain and joined 
other mothers who had lost children and started Mothers in 
Charge. We now have a membership of over 300 women, mainly 
mostly mothers who have lost children facilitating violence 
prevention and intervention programs for children, parent 
education programs, and other various community support 
services.
    These services include a mentoring program with the 
juvenile offenders housed in the House of Corrections, grief 
and loss group counseling sessions with children at Carson 
Valley School. And we are currently administering a reading 
STARS program, a program where we tutor and challenge young 
people to increase their reading skills and run two female 
rites of passage programs.
    We have chapters in Philadelphia, Pennsylvania and its 
surrounding communities, as well. And we will soon open a 
chapter in New York, North Carolina, Georgia, and California.
    Potential witnesses need support to come forward. They need 
to be supported to provide information. They need to not be 
intimidated by crime, by criminals who are often in our 
communities committing the same crime over and over again.
    In addition to Mothers in Charge, starting our 
organization, we have 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, the 
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. The SUSU initiative is an outreach program to 
reduce community-wide fear and intimidation and to encourage 
citizens to cooperate and provide information to law 
enforcement.
    The campaign was created as a response to the Stop 
Snitching and the Don't Talk 2 Police t-shirts, video and 
music. Law enforcement agencies rely and depend on the 
cooperation and testimony of witnesses and recognize that 
witnesses sometimes feel intimidated even when there is no 
actual danger of retaliation. The Step Up, Speak Up campaign is 
not a structured organization, but a process to support goals 
and activities that emerge from grass roots community 
organizations attempting to encourage witness cooperation.
    Although there is no legal obligation to contact the police 
or law enforcement agencies, the information provided by 
witnesses could make the difference in bringing a criminal to 
justice. Citizen cooperation could prevent further crimes and 
protect others from becoming victims.
    It is a criminal offense to intimidate a witness or anyone 
assisting law enforcement in an investigation. Some forms of 
intimidation are community-wide and subtle, such as the Stop 
Snitching apparel and the display of this apparel and those 
messages that are popular through music and video. The SUSU 
campaign is a response to those subtle forms of intimidation.
    However, there needs to be more of a concerted effort to 
address the undermining of the work of law enforcement with 
this Stop the Snitching culture that has emerged across this 
country and are claiming lives because of it. Mothers in Charge 
and Step Up, Speak Up is an example of what can happen when we 
make a commitment to make a difference.
    We have to understand the importance of witness 
intimidation and create ways to counteract it by protecting our 
Nation's citizens against violent criminals. If we are unable 
to protect and support our communities and wanting to speak up 
about criminal activity, it will continue to undermine the hard 
work of law enforcement agencies and grass roots organizations.
    We need judicial and legislative assistance to rid our 
communities of witness intimidation with stricter legislation 
that will in turn allow law abiding citizens to feel safer in 
coming forth with information that will rid our streets of 
violent and repeat criminals.
    Today in Philadelphia there are 220 murders to date. A lot 
of them are unsolved because people are afraid to come forward. 
Human sources are a key to law enforcement. I ask that you 
support people who want to come forward and provide information 
to address the issue of violence in our communities across this 
country.
    I thank you.
    [The prepared statement of Ms. Johnson-Speight follows:]
             Prepared Statement of Dorothy Johnson-Speight



    Good morning. My name is Dorothy Johnson-Speight and I am the 
Executive Director and Founder of Mothers In Charge. As the mother of a 
teenager living in Urban America, I always lived with some level of 
fear. The statistical data provides the grim facts: homicide is the 
leading cause of death of African American males between the ages of 14 
and 24. These homicides are often perpetuated by offenders with long 
lists of criminal activity that also includes murder. I don't think any 
mothers or fathers should live with the fear and fact that their 
children may not be alive to see their 25th birthday.
    My son Khaaliq graduated from college a few years earlier and was 
going back to complete his graduate degree in January. Our plan was 
that we would work with children at risk, I would get my Doctorate, and 
we would go into practice together. In December, only six months after 
his 24th birthday, I experienced my worst nightmare. My son became one 
of the statistics. At age 24\1/2\ he was murdered; shot to death on the 
streets of Philadelphia over a parking space.
    My story is like too many stories in all urban communities. 
December 6, 2001 just after midnight my phone rang. It was my stepson. 
He told me to come quickly - Khaaliq had been shot. My son had been 
shot 7 times by an angry man over a parking space that stopped only 
because his gun jammed. Because this man was so filled with hate, he 
stood over my bleeding son and kicked him in the face.
    The person responsible for my son's death was caught over the next 
few days. A month later, while watching the late news I saw a plea from 
a mother who lost her son in the same neighborhood. She was looking for 
someone to step up and speak up with information in the fatal stabbing 
of her 19 year old, Justin. She had only a few clues that seem to be 
familiar to me. Because of my need to come forward with any information 
that may be pertinent to her case, I went in search to find this 
mother. After further investigation we learned that the same angry man 
that murdered my son Khaaliq had murdered her son Justin Donnelly, 5 
months earlier. This man was seen in the community several times after 
Justin's death and because he was known as such a violent person in 
that community - the people of that community were afraid to come 
forward. They knew what he was capable of, and did not want to suffer 
the same fate. Because no one came forward and provided information, he 
walked the streets every day until he murdered my son. I am constantly 
reminded that if one person had provided the necessary information 
before my son's murder, Khaaliq would still be alive today. I live with 
that awful pain everyday. His murderer was ultimately found guilty of 
first degree murder for both crimes and is currently serving two life 
sentences. Although justice was served it does not stop the pain I feel 
each day and it will not bring back my son.
    In 2003, Ruth and I took our anger and pain and joined other 
mothers in starting Mothers In Charge. We now have a membership of over 
300 people and facilitate violence prevention and intervention programs 
for children, parent education programs, and other various community 
support services. These services include a mentoring program with the 
juvenile offenders housed in the House of Corrections, grief and loss 
group counseling sessions with the Carson Valley School and Residential 
Facility, as well as countless violence prevention workshop 
presentations throughout the school district and the city of 
Philadelphia. We are currently administering the Reading STARS program, 
a program where we tutor challenged young people to increase their 
reading skills, as well as run two female rites of passage programs to 
encourage self-esteem and self-respect among the young female 
population. We have chapters in Philadelphia, Pennsylvania and its 
surrounding communities, as well as chapters soon opening in New York, 
North Carolina, Georgia, and California.
    In addition, Mothers In Charge has become a integral part of The 
Step Up, Speak Up (SUSU) Campaign. SUSU began as a partnership between 
the Federal Bureau of Investigation (FBI) 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.
    The SUSU initiative is an outreach program to reduce community-wide 
fear and intimidation and to encourage citizens to cooperate and 
provide information to law enforcement. The campaign was created as a 
response to the ``Stop Snitching'' and the ``Don't Talk 2 Police'' t-
shirts, video and music. Law enforcement agencies rely and depend on 
the cooperation and testimony of witnesses and recognize that witnesses 
sometimes feel intimidated even when there is no actual danger of 
retaliation.
    The Step Up, Speak Up campaign is not a structured organization, 
but a process to support goals and activities that emerge from grass 
roots community organizations attempting to encourage witness 
cooperation.
    Although there is no legal obligation to contact the police or 
other law enforcement agencies, the information provided by witnesses 
could make the difference in bringing a criminal to justice. Citizen 
cooperation could prevent further crimes and protect others from 
becoming victims. It is a criminal offense to intimidate a witness or 
anyone assisting law enforcement in an investigation. Some forms of 
intimidation are community-wide and subtle, such as the ``Stop 
Snitching'' apparel and the display of this apparel and those messages 
through popular music and videos. The SUSU campaign is a response to 
those subtle forms of intimidation.
    In addition to fear, a witness may be deterred from providing 
information and testifying because of strong community ties and a 
distrust of therefore, in addition to providing a resource list for the 
public with the contact numbers of law enforcement agencies they can 
call if they have information about a violent crime, the Step Up, Speak 
Up brochure specifically contains a resource list with the contact 
numbers for government witness programs and community groups which 
support and affirm the role of witnesses in solving and reducing 
violent crime.
    Mothers In Charge and SUSU is an example of what can happen when we 
make a commitment to make a difference. We have to understand the 
importance of witness intimidation and create ways to counteract it in 
protecting our nation's citizens against these violent criminals. If we 
are unable to protect and support our communities in wanting to speak 
up about criminal activity, it will continue to undermine the hard work 
of law enforcement agencies and grassroots organizations. We need 
judicial and legislative assistance to rid our communities of witness 
intimidation with stricter legislation; this will in turn allow law 
abiding citizens to feel safer in coming forward with information that 
can rid our streets of violent, repeat offenders.
    Thank You.

    Mr. Scott. Thank you very much.
    And I failed to reference when I mentioned the gentleman 
from Massachusetts, the bill introduced by the gentleman from 
Massachusetts the gentlelady from Texas has introduced H.R. 253 
entitled No More Tulias: Drug Enforcement Evidentiary Standards 
Improvement Act to try to avoid situations that happened in 
Tulia.
    We will now have questions from Members. And we will 
subject ourselves to the 5-minute rule. And I will begin by 
recognizing myself for 5 minutes.
    Mr. Murphy, has the Department of Justice changed policy in 
use of confidential informants in the last few years?
    Mr. Murphy. Yes, we have, Chairman Scott. We have 
implemented a comprehensive series of changes associated with 
managing our human sources more effectively, more responsibly, 
and more efficiently.
    Mr. Scott. Has the change made a difference?
    Mr. Murphy. I would say it is too early to tell. The formal 
changes only took place in June of this year in terms of the 
implementation of those. But they are a rigorous set of 
changes, both in terms of how we manage human sources and how 
we validate and continue to sustain human sources. And we have 
confidence that they will over time improve and allow us to 
continually improve our human source program.
    Mr. Scott. Does the department have resources to 
investigate situations like Atlanta? You have investigated that 
alleged abuse and uncovered after the allegation that it was, 
in fact, rogue police officers. Do you have sufficient 
resources to respond to similar allegations?
    Mr. Murphy. Chairman Scott, I believe Director Mueller has 
made that issue a priority. And he will make resources 
available for this type of issue.
    Mr. Scott. Professor Natapoff, you have indicated data 
collection being one legislative suggestion and also judicial 
review and reliability hearings. You mentioned the data 
collection. Can you make comment on the judicial review and 
reliability hearings?
    Ms. Natapoff. Excuse me. Yes, Mr. Chairman. The judicial 
review recommendation is directed toward the fact that in the 
Federal system, there is very little, if any, judicial review 
or public airing available for defendants who are cooperating 
with the government. My written testimony references the 
aspects of the Federal code and the rules of Federal criminal 
procedure that constrain the court's ability to review a 
defendant's cooperation under current law. It requires a 
government motion submitted to the court to permit the review 
of any cooperator.
    The sentencing commission has issued a report indicating 
that over half of all defendants actually provide some 
cooperation to the government and yet never receive any on-the-
record credit for that cooperation. What that does is it draws 
a veil over the Federal process of cooperation and it makes the 
prosecutor the gatekeeper for our ability to view the operation 
of this important public policy.
    The suggestions I have made would permit a more open airing 
of the work of defendants and the work of the government in the 
process of cooperation, which is central, of course, to our 
investigatory and our sentencing processes and reduce the 
availability of the opportunity for abuse, for manipulation, 
and also for inconsistencies. As this Committee is well aware, 
the main purpose of the U.S. sentencing guidelines was to 
reduce inconsistencies in sentencing across the board in 
Federal sentencing. And there is a lot of data that indicates 
that the secrecy surrounding cooperation and the use of 
confidential informants in criminal cases radically increases 
the kind of inconsistencies that we see in that.
    Mr. Scott. Well, is there a question of reliability of the 
testimony when people are being rewarded for coming up with 
testimony?
    Ms. Natapoff. Yes, Your Honor, sir, that is a separate 
question. I and other scholars have--and researchers--have 
recommended that as in a few jurisdictions that the Federal 
Government institute the ability of Federal courts to act as 
gatekeepers to the use of informants as witnesses at trial much 
as the Federal system provides for reliability hearings for 
paid experts, we have suggested that this would be a powerful 
tool for ensuring the reliability of paid, compensated 
confidential informants if they are to be used at trial as 
witnesses.
    I would note, however, that since very few cases in the 
Federal or for that matter, in the State system actually 
proceed to trial, this important reform would affect a 
relatively small number of cases. What it would do, however, is 
it would open up the process to more scrutiny, to more 
accountability, and it would send the message that we will not 
tolerate the kind of unaccountable, unreliable or confidential 
informants in our most important judicial processes.
    Mr. Scott. Can training or setting of standards or 
professional development make a difference in the use of 
informants?
    Ms. Natapoff. Absolutely. I think everyone today is in 
agreement that we need more training, that we need more 
resources for the handling and the----
    Mr. Scott. And what form would that training take place? 
Would it be setting standards, credentials, seminars? How would 
you actually do the training?
    Ms. Natapoff. I would incorporate by reference the 
recommendations of the other witnesses on the panel. And I 
would suggest, however, most importantly that what training and 
accountability does is it changes the culture of snitching in 
our criminal justice system.
    It sends the message that this is an important public 
policy that we take seriously, that we will not permit these 
kinds of deals for information and lenience to take place off 
the books at the untrained or unconstrained discretion of 
individual officers and that instead this is a public policy 
that we are going to rationalize, that we are going to treat as 
we would any other important public policy in our criminal 
justice system.
    Mr. Scott. Thank you.
    The gentleman from California?
    Mr. Lungren. Thank you very much, Mr. Chairman. This is an 
important hearing, also a very difficult one for me because I 
see and I hear Ms. Speight and the pain that you have for the 
loss of your son and the failure of the system and the failure 
of people to assist the system to get a murderer off the 
streets before he struck your son.
    And then I hear Reverend Hutchins. And we had a death in 
that case of a law abiding citizen who did nothing more than 
live in her own home. And she died at the hands of what appears 
to be rogue cops in a rogue police operation.
    And when I hear from Mr. Brooks, who I have known for many 
years, and I know whereof he speaks of the importance of these 
kinds of legitimate law enforcement efforts to try and protect 
against what we heard from an aggrieved mother. And at the same 
time, we have a case that has gotten national attention that 
didn't involve a death, but involved improper actions by 
Federal law enforcement officers on our border.
    And in the midst of that discussion, some people are 
saying, ``Well, all they did was they didn't file proper 
reports.'' And I think we lose sight of the fact of how 
important training, proper procedure, supervision, follow-up, 
and consequences are in the entire system. We don't speak about 
it enough, it seems to me.
    And I am not certain that, Professor Natapoff, the idea of 
the Federal courts getting further involved in it is as 
important as training, supervisions, standards, certification, 
and oversight. And I have a little concern about the idea that 
if we on the Federal level do something, that will make the 
matters necessarily better because I have had a particular 
concern, shared with Mr. Delahunt, about the performance of the 
FBI, a bureau that I have great respect for, but 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 percent of the cases that they 
reviewed not followed their own procedures.
    Now, I realize some of those are probably very minor 
technical. But others are very important. And as a former law 
enforcement official at the State level, my concern and the 
focus of the legislation that Mr. Delahunt and I have come up 
with is the failure of the FBI to control its confidential 
informants such that those confidential informants are allowed 
to commit serious violent felonies in local jurisdictions. And 
our legislation would make it a requirement that the FBI notify 
local law enforcement or the chief law enforcement officer of 
the State when that has occurred.
    Because just as we could hamper proper law enforcement 
operations by getting rid of confidential informants, we hamper 
local and State law enforcement operations when the FBI refuses 
to alert people to the fact that confidential informants 
working with the FBI are allowed to commit serious violent 
felonies, including murder. That is where I think the system 
goes awry.
    So with all due respect, Professor, the idea that maybe 
with Federal guidance we do better doesn't always sit well with 
me as a former chief law enforcement officer of a State.
    And, Mr. Murphy, I loved to hear what you had to say 
because I hope that it is true. But 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, some other 
offices around the country where the failure to respect local 
law enforcement to the extent of telling them of C.I.s who had 
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 where C.I.s 
have--you have reasonable evidence that C.I.s working with you 
have committed serious violent felonies?
    Mr. Murphy. Thank you for that question. The specifics in 
terms of what we have accomplished under the direction of 
Director Mueller asking us in 2004 to undertake a reengineering 
of both our policy and our validation process and then to ask 
the attorney general to provide additional guidelines to 
introduce into that process additional checks and balances to 
ensure that we are conducting this process in a manner that was 
consistent with expectations, has put what I would describe as 
a series of layered defenses against the kind of abuses and the 
kind of problems that were presented in some of the cases that 
you refer to in your remarks.
    It is not just a matter of periodically revisiting your 
processes. It is a matter of stepping outside of them and 
aggressively challenging them and ensuring that you are 
implementing procedures that are protecting against the 
potential for those sorts of activities to occur.
    I think those activities in combination with the 
substantial change in the nature of the relationship between 
Federal, State, local, and tribal law enforcement partners 
through our partnerships in the joint terrorism task force, our 
partnerships in fusion centers, our partnership in gang task 
forces has transformed the nature of the relationship that we 
have with our State and local partners.
    And I think the opportunities for the sort of incidents 
that you characterized to occur are substantially diminished 
and that the policies and procedures that we have in place, 
specifically those with regard to activity of a source that may 
have the occasion to engage in activity that is otherwise 
illegal, are designed specifically to address the concerns that 
you spoke to.
    Mr. Lungren. If I could just ask my question once again 
very simply. And that is is there a policy in the FBI to share 
information with local and State law enforcement officials when 
you have become aware, that is, the FBI, 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.
    Mr. Murphy. It is my understanding, Congressman, that there 
is not a specific documented policy, directly to answer your 
question, sir.
    Mr. Lungren. Well, I thank you for that because you may 
have given me the basis for enacting our legislation to require 
that--well, do you think it should be?
    Mr. Murphy. I think it is 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 the local law enforcement activity but have 
equities that affect other local law enforcement activities we 
are being asked to respect and support the equities of one 
local law enforcement agency against another.
    And when I say against, I don't mean in a confrontational, 
but in terms of balancing the equities and the interests, the 
long-term interests of a particular investigation. So I don't 
think it would be fair or accurate for me to try and 
characterize a general solution, particularly if there is 
legislation that is under consideration. Our process and our 
approach is to take onboard criticism and observations about 
how we conduct our procedures and to consider whether or not we 
have appropriate measures in place to ensure and preserve the 
integrity of our process.
    Mr. Scott. The gentleman's time is expired. But this is 
such an important point. And I think we need to follow-up 
because the question was violent, felonious activity.
    Mr. Lungren. Yes, all I can say is 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 as to whether you 
could tell me that you have C.I.s in my jurisdiction that are 
committing serious violent felonies, I would be more than 
offended.
    Mr. Murphy. I think that is a very fair response, 
Congressman. But let me clarify in terms of how I understood 
your question and how I answered your question. You asked 
directly if we do, in fact, have a policy. And to my knowledge, 
there is not a policy.
    That does not mean that it is not a common practice or an 
appropriate practice to convey that information. And I would 
want to be certain about the nature of that response to make 
sure that you are comfortable with what we do in practice.
    Now, saying trust me or saying it is going to happen every 
time isn't the same as having a policy in place. And I 
recognize and acknowledge that. And I will take your concerns 
back with me. Thank you.
    Mr. Scott. Thank you. And I thank the gentleman for his 
questions.
    Obviously, Mr. Murphy, I don't think this is the last you 
are going to hear of this issue. So we will follow through when 
the legislation is introduced.
    I apologize to the other Members for allowing the gentleman 
to take so much time, but I think that was an extremely 
important issue that we are all interested in.
    The gentleman from Michigan, the Chairman of the full 
Committee and recent recipient of the Spingarn award from the 
NAACP, the highest award that that organization gives, just 
last week. Congratulations, Mr. Chairman.
    Mr. Conyers. I thank you very much, Bobby Scott.
    And Mr. Nadler has given me permission to go next. The 
discussion is so important.
    And the reason I am so proud of the Judiciary Committee is 
that Dan Lungren is the former attorney general of the state of 
California. Bill Delahunt, top prosecutor in--former top 
prosecutor in the state of Massachusetts. They are working on 
this issue.
    And the first thing I want you to know is that the head of 
the FBI, Mr. Mueller, and the deputy director met with me last 
week. And so, we are all working together on this.
    And I thank you for your contribution, Mr. Murphy. It is 
not just what you are doing now. It is what you are going to be 
doing in the future. And that is what we are working toward.
    Because I happen to believe that the Federal law 
enforcement policy is a very important guideline for all the 
State and local activities of informants and snitches that is 
going on that is totally out of control. We can't even record 
it. We don't have any idea. It is every law enforcement agency 
for itself.
    Now, in this hearing, there are two big issues. Boy, if it 
was only informants and snitches out of control. We have a 
problem, a history in America. And listen to me, Members of 
this Committee, of police lawlessness in American history.
    So let us not be naive about this thing. July 23rd is the 
40th anniversary of the biggest riot in American history in 
Detroit, Michigan. Forty-three people lost their lives. 
President Lyndon Johnson called me to tell me we were sending 
in the Army on top of the Michigan State Police on top of the 
Detroit Police.
    He sent in a special representative, yes, Cy Vance. And I 
had never in my life thought I--I will never forget this. Tanks 
rolling down the street I lived on in Detroit, American tanks. 
And the National Guard was activated. People lost their lives. 
They were shooting off rooftops, snipers, Watts riot just 
before this. This is 1967, the 40th anniversary.
    Police lawlessness caused that riot and many of those riots 
that went through it. So that is why I say that this is an 
important part of it. But getting police, the only people that 
are authorized to carry weapons and use them to protect 
Americans--this is a huge issue. And that is why I am proud of 
this Committee that can bring in attorney generals and State 
prosecutors and have these kinds of activities that are going 
on.
    Now, we need an off-the-record hearing with the FBI on this 
question. We are not going to be able to get into this now.
    We are being stiffed on how much money the Byrne grant 
money, which goes for informants. We can't get that right now. 
But don't worry, we are going to get it.
    And I want to commend both Committees, Nadler's and 
Scott's. Here are six witnesses. We need to meet again when we 
are not in the formal strictures of the back and forth of a 
formal Committee hearing.
    We have got to talk about this thing, Reverend Hutchins.
    And the lady here--we really have seven witnesses. And then 
we look at this young man here that risked his life from 
Atlanta. That is eight witnesses.
    We have got the congresswoman from Texas who brought the 
Tulia incident. There is another incident. It isn't police just 
there. It is criminal justice out of control there because they 
imprisoned 13 percent of the whole population before they found 
out that everybody that they wanted to put in prison they just 
accused them of selling drugs.
    So I am saying this is a small problem inside of a bigger 
problem. And we have been addressing it. We are trying to do 
what we can about it. I talked to our prosecutor in Wayne 
County or the office of the prosecutor. And we got back this 
information.
    They use confidential informants in 50 percent of all the 
homicide cases. But they have guidelines built in. The problem 
at the local level is that everybody has got their own 
guidelines. There are 15,000 guidelines. And, of course, there 
are a lot of them that don't have any guidelines. So we have 
got to get this organized.
    Now, I close with this, Reverend Hutchins. What has 
happened with these Web sites going up now to stop snitches is 
that they started homicides to retaliate to the snitches. Now, 
that is just promulgating the problem. That is making it worse.
    And that is why we have got to bring this thing under 
control. The answer is not to start assassinating people that 
are snitches. And this is corrupting the entire criminal 
justice process in America, Federal and State. And I ask for 
unanimous consent to merely have Reverend Hutchins and 
Professor Natapoff respond to my comment.
    Mr. Scott. Without objection.
    Reverend Hutchins. Thank you, Mr. Chairman. Mr. White just 
slipped me a note, Chairman Conyers, that if police step up 
like they should be, there would be no room for confidential 
informants to mess up, as he put it, to start with. I could not 
agree more.
    As a young African-American man, there is a problem with 
policing and police behavior, the attitude, the disposition, 
the demeanor of police officers, even the police officer who 
was not white but a Black man that stopped and harassed and 
talked to us in a very unpleasant manner as we entered this 
very building for this very hearing. 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.
    Mr. Scott, this Committee has a unique opportunity to help, 
even protect the law enforcement officers themselves that 
engage in this kind of behavior by insulating them from the 
capacity and the potential they have to engage in this kind of 
corrupt behavior. One of the most tragic aspects of the 
Johnston shooting was that these were fundamentally good police 
officers. They were veterans, most of them.
    They were not corrupt in the sense that they had criminal 
intent. They were corrupt only in the sense that they engaged 
in a pattern of behavior that violated police and procedure and 
in turn, violated Ms. Johnston's civil rights and then tried to 
cover it up. The most tragic aspect of this case is that these 
were decent, reasonable police officers.
    I would 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 and we would 
not have had to bury a 92-year-old woman. Magistrate judges, 
Mr. Chairman, are charged and most often trained to make sound 
judgments and decisions based on evidence deemed as reliable 
and truthful from the officers' perspective.
    I would submit to you finally that 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 and say we have a 
confidential informants. And they have been engaged in this 
kind of practice for years. And it is happening all over the 
country.
    Mr. Scott. Professor Natapoff, could you make a very brief 
statement?
    Ms. Natapoff. Thank you.
    Mr. Conyers. Not so brief.
    Ms. Natapoff. If I might very briefly respond back to 
something that Mr. Lungren said earlier. I didn't intend to 
suggest at all that fixing and improving matters at the Federal 
level would take care of the State and local problem. Of 
course, only about 10 percent of all of our criminal justice 
system is Federal. Ninety percent is State. So, I agree with 
your proposition that data collection and guidance monitoring 
at the State and local level is of paramount importance.
    Mr. Conyers, of course, I agree that your proposition--that 
this question about the use of confidential informants goes to 
the heart of the problem in police community relations. Of 
course, this is a historic problem in this country. It is not 
reducible to the problem of snitching or stop snitching.
    But I would submit that the 20-year policy on the part of 
State, local, and Federal Governments 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, we need measures at the Federal as well State and local 
level 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. It is of paramount importance 
and would go to that question of police community trust.
    Mr. Conyers. Thank you so much.
    Mr. Scott. Thank you very much. I was going to introduce 
two of the Members that have shown up, but both of them have 
disappeared.
    The gentleman from Texas, Judge Gohmert?
    Mr. Gohmert. Thank you so much, Mr. Chairman.
    I appreciate the witnesses all being here. I appreciate 
your testimony.
    It is a difficult problem, but a bit put off by the 
assertion that there is a problem in the culture of policing 
right now because there just simply too many fine, upstanding 
law enforcement officers who put their lives on the line. And 
as Reverend Hutchins said, you know, in that case he 
referenced, that tragedy, there were good, decent people 
involved in that. So it is important to have procedures in 
place to help people avoid going from being good, decent, and 
upstanding to falling into traps and being tempted to do 
otherwise.
    But the old saying when it comes to informants, since 
everyone wants a perfect angel to come in and testify and to be 
the witness is that transactions in hell are not witnessed by 
angels. And so, you have to work with what you have got.
    But confidential informants do require a relationship with 
somebody they can trust because especially when you see 
violence on people that come forward and do their patriotic, 
civic duty and indicate there has been a crime so that you 
don't end up having to lose a family member in such a needless 
way. So that relationship is important. People can feel 
comfortable coming forward.
    That takes relationship growth. It takes a while to build. 
And many such relationships have been built, I have seen, with 
FBI agents who were there for a long enough period of time 
where local law enforcement is also comfortable with them and 
they are comfortable with local law enforcement where they do 
work hand in hand.
    But unfortunately we had a new brilliant, innovative policy 
with the personnel in the FBI that was put in place called the 
5-year up or out policy. That may not be the official name. And 
I know just in my little town of Tyler small FBI office.
    We have already had one of the best agents, extremely 
experienced, well-trained, good common sense. Well, he wasn't 
going to move to Washington, so it was--if it wasn't up, it was 
out.
    We have got another retirement of another young agent that 
is not coming to Washington. So if it is not up, it is out.
    We are losing them all across the country. When we saw the 
abuses with the NSL letters and our FBI director said, ``Hey, 
we should have made sure we had more experienced and well-
trained people in place.'' And I am thinking, ``Well, you are 
just running off your best ones right now.'' And that 
relationship is so important.
    So I am still urging--and I know when Mike Rogers tried to 
talk to somebody with the FBI, they came in and made everybody 
in his office leave so they could do a search of his office 
before they would allow the conversation, a little bit of an 
intimidation tactic. But anyway, that apparently is not well-
received to question this policy. But I think it is one that is 
creating problems.
    As far as the gatekeeper policy, you know, as a judge, I 
had a lot of those hearings in both civil and criminal cases. 
But I am concerned about that if you have too widespread a 
requirement because from my own experience, it seemed like the 
people that were most adamant to find out the identity of a 
confidential informant whose identity may not have even been 
necessary at all because of all the evidence that was gathered 
otherwise that they were the most violent and unethical 
defendants, as was proven after trial.
    But those are the ones that always wanted to get at it. And 
you got the impression it was so they could go after the 
informants and they wouldn't go to trial. And, you know, we 
have seen the movies from the 1920's and what not where gangs 
used to do that kind of thing.
    So it is an interesting suggestion, Professor. But I have 
concerns, would be interested in any input. But when you hear 
that 87 percent of the FBI cases with confidential informants 
do not have proper procedures that were followed, then it does 
kind of stagger the conscience and make me want to see that 
there isn't just a feeling maybe we ought to do something, that 
we do something, that the FBI has policies in place.
    We had some poor folks out in Smith County, my home, that 
had their home broken into a few years ago. I didn't even know 
you could get an oral warrant until this happened. But they 
called a Federal magistrate, got an oral warrant and broke into 
these people's home. If the father had been home, he would have 
pulled a gun and probably been shot like the terrible incident 
before.
    But since he wasn't home, his wife and his adult daughter 
were thrown to the floor, their house ransacked and then 
eventually they realized it was the wrong home, sorry, and then 
they went to another home and had the good sense, an hour or so 
later, not to bust the door down like they did the prior one. 
It was a good thing because it was the wrong home, too.
    So anyway, it really helps--well, and that was the Dallas 
office that took over because they knew more than Tyler FBI 
agents. So anyway, it is good if you work with local law 
enforcement officers. You have that relationship. You have some 
kind of safeguard with confidential informants. I am hopeful 
that we get input from the FBI, we get input from professors 
like Natapoff.
    Appreciate your input.
    But we have got to come up with a policy. I think it would 
be better if we had your help because you know what happens 
when we do it on our own. Thank you.
    Mr. Scott. Thank you.
    I would like to recognize the gentleman from Arizona, the 
Ranking Member on the Constitution Subcommittee who has joined 
us.
    Well, I was just recognizing his presence. Okay. The 
gentleman from New York, the Chairman of the Constitution 
Subcommittee, Mr. Nadler?
    Mr. Nadler. Thank you very much.
    Professor Natapoff, you state in your testimony that 
according to Northwestern Law School Center on Wrongful 
Convictions, nearly half of all wrongful capital convictions in 
this country are due to bad information obtained from a 
criminal informant.
    Ms. Natapoff. Yes, sir.
    Mr. Nadler. Well, before I ask you the question, let me 
say, also, that so you have got a problem with criminal 
informants who are either wrong or lying. Obviously you have a 
whole culture in which informants are promised more lenient 
sentences or perhaps not to be prosecuted at all in response to 
the information that the prosecution wants to hear. Hopefully 
it is truthful, although no guarantees. We see from these 
statistics that a lot of times it is not truthful.
    We also have a problem, not with most cops, but with too 
many, of what has become at least in the New York area known as 
testilying. We have actually formed a verb, testilying, that is 
lying in testimony by cops who arrest someone usually for 
drugs. The drugs are in plain sight on the car seat. How often 
is that going to happen?
    Yet it happens in about two-thirds of all cases. I don't 
believe that--that really happens in two-thirds of all cases. 
But convictions are gained on the basis of that.
    So my question, first of all, is how do you think we can 
deal with the question, aside from putting into place 
procedures and having the Federal Government inform the local 
government when they are having an informant. We hear that 87 
percent of the time in the FBI they don't even follow the 
procedures that they have.
    What changes in the law should we make to minimize the odds 
that there will be wrongful convictions from either a 
deliberately dishonest or mistaken testimony or information 
from an informant or even from a police officer that is not, as 
has been said before, a bad guy. He knows that these guys have 
done multiple wrongs. If he has to shade the law a little, the 
marijuana was out in plain sight, to get them, it is not a 
terrible thing. How do we get around those two problems?
    Ms. Natapoff. The short answer, sir, is transparency. The 
long answer----
    Mr. Nadler. What does that mean?
    Ms. Natapoff. Transparency in the way that we handle 
criminal informants from the very beginning of the process from 
the street encounter between a police officer and an addict on 
the street corner to the use of the information of that addict 
to the arrest, the obtaining of warrants, to prosecutions and 
ultimately in a very small number of cases in our system, 
potentially a trial. The recommendations I have made for data 
collection and monitoring would seek to make transparent the 
public policies that we use to handle informants.
    As a number have noted----
    Mr. Nadler. When you say the public policies, if an 
informant is telling you that someone is doing something and in 
return for that he is not being prosecuted for something, 
should that be public in that instance?
    Ms. Natapoff. Yes. The fact that the government is trading 
away criminal liability with an informant should be made 
public, not the name of that informant, not----
    Mr. Nadler. Not the name of the informant?
    Ms. Natapoff. No, I am not recommending that kind of data 
be made widely public. What I am recommending is that State and 
local law enforcement agencies as well along the model of the 
FBI create aggregate data that will reveal the contours of this 
national public policy. I see the point of your question is 
that it does not tell us whether that particular informant is 
lying at that moment. I acknowledge that it is not a perfect 
solution to the lying informant. But as a number of members 
have indicated, the use of informants is itself a risky tool.
    Mr. Nadler. Yes. But I have always been bothered--and the 
more I am hearing this testimony, I am being bothered more and 
more. But I have always been bothered by the notion, not only 
of an informant as in the background, but an informant as a 
witness.
    An informant as a witness who says I saw him commit the 
murder, I saw him do whatever it was he is alleged to have done 
and is, in effect, paid for that by not being prosecuted for 
something else or by getting leniency in a sentence and the 
protection we have is that we tell the jury--we let that 
information come out and the jury can judge the truthfulness of 
it. I mean, the jury is left to judge the reliability 
information in light of the fact that we are bribing the 
witness, in effect, to implicate the defendant.
    Yet we know that a large proportion--and that is supposed 
to be the defense. And yet we know that a large proportion of 
convictions that we now know were wrongful convictions are 
because, it turned out, the informant was lying in order to get 
not prosecuted or to get a reduction.
    Is there any further protection we can have aside from 
letting the jury know that the testimony is purchased? Because 
obviously juries believe the testimony very often anyway. We 
wouldn't put him on the stand if we didn't think they would. 
Very often that testimony is not truthful.
    Ms. Natapoff. Right.
    Mr. Nadler. So how do you protect the system from that?
    Ms. Natapoff. But the vast numbers of wrongful convictions 
that come about as a result of trial indicate that jurors do 
believe lying informants, even when they are informed that they 
are getting a deal.
    Mr. Nadler. So should we prohibit informants--should we 
prohibit that testimony or prohibit them from being paid for 
that testimony in any way?
    Ms. Natapoff. I am not recommending that, sir.
    Mr. Nadler. Why not?
    Ms. Natapoff. Because I think that as the number of Members 
and witnesses today have indicated, there are going to be some 
cases--in my view, not as many as we currently use them in. But 
there will be some cases in which a public policy judgment 
could be made that it is worth it to tolerate the risk of using 
an informant in pursuit of a larger social good. I think----
    Mr. Nadler. So it is worth it. But let me rephrase that.
    Ms. Natapoff. Yes, sir.
    Mr. Nadler. It is worth it to tolerate a certain number, an 
unknown number of wrongful convictions for serious crimes 
because we know that juries in most cases will believe 
purchased testimony, even when informed it is purchased in 
order to get the convictions of people who are guilty who we 
couldn't otherwise convict. It is worth it to convict innocent 
people in a certain number, an unknown number of cases. That is 
what you are saying.
    Ms. Natapoff. Sir, we already tolerate the conviction of 
many innocent people in our criminal and justice system, not 
only those convicted----
    Mr. Nadler. So we should understand, that is the tradeoff 
we are making?
    Ms. Natapoff. That is the tradeoff we make in our system 
that is based on an adversarial process and due process. We 
tolerate that all the time. I am suggesting that in 
acknowledgement of the reality of our criminal justice system 
that we recognize that fact, that we regulate that fact. We 
barely regulate the process. Now, it is anomaly in our----
    Mr. Nadler. Let me ask you the last question because I see 
the red light is on. Is there anything other than transparency 
that we could do? And I am not talking about the background 
informant now. I am talking about the witness, the informant 
who is testifying that I saw the defendant do whatever it is.
    Ms. Natapoff. Yes, sir.
    Mr. Nadler. Is there anything we can do and in return for 
that--now? Isn't it true, Mr. Foreman, Mr. Witness, that you 
made a plea deal with the prosecutor in order to get this 
testimony. Yes, sir. The jury believes the testimony anyway? Is 
there anything we could do to lessen the odds that we are not 
doing to lessen the odds of false testimony being elicited by 
this process or being believed by a jury?
    Ms. Natapoff. Yes, there are a number of things included in 
my written testimony. One, we can encourage courts to hold 
reliability hearings, pre-trial reliability hearings so that if 
a judge decides that the rewards given to that informant and 
the history of that informant indicate that they are 
insufficiently reliable, that witness will never go to the 
jury. By making the court the gatekeeper for the question of 
reliability and not relying on the jury.
    Mr. Nadler. You said encourage. Why should we not require 
that?
    Ms. Natapoff. I would suggest that this Committee could 
require in Federal court, certainly.
    Mr. Nadler. To require it.
    Ms. Natapoff. We can have corroboration requirements. A 
number of States already require that, including Texas. We 
could also strengthen the discovery requirements. Currently 
prosecutors are not required under constitutional law to reveal 
impeachment Brady material to defense attorneys prior to trial 
or if the defendant is pleading guilty. This Committee could 
propose legislation that would require that information to be 
provided.
    We could strengthen the adversarial process, which is our 
traditional way of ensuring the truth of witnesses to make sure 
that the deals and the criminal history of informants are 
earlier and better provided to defense and to the court.
    Mr. Nadler. Let me ask one final of Mr. O'Burke and Mr. 
Murphy.
    Do you object to anything that she just suggested?
    Mr. Scott. You are trying my patience.
    Mr. Nadler. That is my last question.
    Do you object to anything that Professor just suggested?
    Mr. O'Burke. Well, you asked a fairly simple question, 
which is what can we do. I would say we ought to criminally 
prosecute those who lie under oath.
    Mr. Nadler. No, no, but the professor just made a number of 
suggestions of required reliability hearings, give Brady 
material earlier and a few other things. Is there anything that 
she said that you think is not a good idea?
    Mr. O'Burke. I am not sure how practical some of those 
things would be. I think it is very important that we recognize 
that the informant is merely a tool or a resource used by law 
enforcement. We need to change some of the paradigms or 
thinking about which law enforcement operates under to produce 
arrests.
    Otherwise, you know, the two dangers with an informant is 
that he obviously will lie and then secondarily that law 
enforcement believes it operates appropriately to achieve 
higher arrests. I think that we need to change that type of 
paradigm or thinking so that it doesn't occur.
    Mr. Nadler. Thank you.
    Mr. Scott. Thank you.
    The gentleman from North Carolina, Mr. Coble?
    Mr. Coble. Thank you, Mr. Chairman.
    It is good to have you all with us. From the human source 
tree, I see three tentacles or limbs extending therefrom: 
confidential informant, witness intimidation and dirty cops or 
dirty law enforcement.
    Mr. Brooks, how profoundly does the witness intimidation 
issue impact criminal investigations?
    Mr. Brooks. Thank you, Mr. Coble. It does provide a 
significant impact, especially in our inner cities in America. 
These are, you know, oftentimes very violent communities where 
persons cooperating with law enforcement are at significant 
risk.
    We saw the issue of the Dawson family in inner city 
Baltimore, Maryland. And so, that is a significant issue. And 
what I am concerned about is if we not only will some of the 
proposed reliability hearings clog the system, but that will go 
further to reduce the cooperation.
    I mean, some of these witnesses, these informants are 
already afraid of their cooperation with law enforcement. And 
if we parade them in and out of courthouses exposing them to 
potential exposure in their own communities, that will thwart 
our efforts more. I think the answer really is ensuring that we 
have better standards of corroboration and better controls over 
these informants.
    Mr. Coble. Well, you jump ahead of me because that was 
going to be my next question about parading before. And I could 
see some risk involved there.
    Ms. Speight, let me put a two-part question to you. How has 
the stop snitching movement affected the city of Philadelphia, 
A? And B, how does the step up, speak up campaign attempt to 
counter that movement?
    Ms. Johnson-Speight. I think the stop the snitching t-
shirts is a culture that is very prevalent in the city of 
Philadelphia and probably other urban cities across the 
country. And it intimidates, first of all, sends a message not 
to speak, not to talk, not to trust law enforcement. So it 
undermines the whole process of people coming forward with 
information.
    There have been key trials, murder trials that the witness 
has gotten on the stand and not remembered anything because of 
the stop snitching culture and the intimidation piece that is 
associated with that. The step up, speak up campaign in 
Philadelphia is a collaboration of Mothers in Charge and many 
other community organizations working to get a message out that 
it is important to stand up.
    Snitching saves lives. And you have got to come forward 
with information and not to be afraid. But we do need--we need 
more support around folks who want to come forward.
    We need the kind of support that would encourage them to 
come forward with information. We have many unsolved murders in 
the city of Philadelphia because of the stop snitching and the 
fear of intimidation as a result.
    Mr. Coble. I thank you for that.
    Mr. Murphy, at the outset you made it clear that much 
information that this Subcommittee will seek is classified. And 
with that in mind, I think Chairman Conyers' suggestion that we 
meet again with you offline or off the record, I think, has 
merit, and we would probably follow-up on that.
    Mr. Murphy, let me put this question to you. I don't think 
you have answered this. What are the instructions for opening a 
confidential human source? And how often does a validation 
process occur?
    Mr. Murphy. The instructions actually overall talk first 
about challenging whether you need to open a confidential 
source at all, that there are circumstances under which you 
should consider whether or not you can acquire the information 
more effectively, more efficiently, and more consistently 
without proceeding into that process. But generally the reasons 
and the circumstances under which you would open a confidential 
source is to protect the identity of the source, to protect the 
information that they are providing or the integrity of the 
information that they are providing.
    The validation process, the review process, particularly 
that which has been implemented 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 and a revalidation for all sources that is done both at 
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. Coble. Thank you, Mr. Murphy.
    And, Mr. Chairman, before the red light illuminates, I 
would like to yield what time I have left to the gentleman from 
California.
    Mr. Lungren. I thank the gentleman for yielding.
    Mr. Brooks, there has been discussion here or statements 
made about wide-scale misuse of confidential informants or a 
culture of the misuse of confidential informants. Can you give 
us your assessment as to how prevalent the problem is?
    Mr. Brooks. Certainly. You know what happens? In these 
cases, and rightfully so, we live in a free and transparent 
society in the cases such as in Atlanta and in Tulia and in 
Dallas. The public sees this on the front page of the 
newspapers and as the lead story in the press. But there are 
870,000 police officers roughly in America, most of whom are 
out there trying to do the job correctly, most of whom will do 
the job correctly if we give them the right training and 
guidance.
    Thousands and thousands of criminal cases, street gang 
cases, drug cases, violent crime cases are made every day by 
America's State, local, and tribal law enforcement officers 
across this country. By NIJ statistics, some 98 percent of all 
arrests and prosecutions are made by our Nation's State, local, 
and tribal law enforcement officers.
    And so, it is my experience, not only as a 32-year cop in 
California, but as the leader of a 60,000-plus-member 
organization that while these instances are extremely troubling 
and they definitely need attention, they are not nearly as 
widespread as one might be led to believe by the press and by 
some of the testimony that has occurred here today.
    Mr. Coble. Mr. Chairman, I will reclaim and yield back.
    Mr. Scott. Thank you very much.
    The gentleman from Massachusetts?
    Mr. Delahunt. Mr. Murphy, I was pleased to hear that you 
are going to take back our concerns to the director in response 
to observations by my friend and colleague from California, Mr. 
Lungren. I guess my question is where have you been. Where have 
you been? The scandal in the Boston office of the FBI occurred 
in the late 1990's, about a decade ago. And these issues have 
existed for decades now.
    I can't remember--well, maybe I am incorrect. Have you or 
the director reached out to any Member of Congress to discuss 
these issues?
    Mr. Murphy. I personally have not. I know the director has 
had numerous conversations with Members about the issue of the 
confidential human source program and our management of the 
confidential human source program.
    Mr. Delahunt. Well, I don't know. Maybe he had 
conversations with Mr. Conyers, the director of the FBI. Mr. 
Lungren, did he have conversations with you?
    Mr. Lungren. He has.
    Mr. Delahunt. Well, let me just say as someone who spent 22 
years in law enforcement, who spent considerable time 
participating in the hearings conducted by the Boston office of 
the FBI, I never heard a word, which leads me to the conclusion 
that--and you have acknowledged it today again in response to 
the Ranking Member, that there is no policy. But it confirms my 
own conclusion that it is time for legislation. It is time for 
legislation to ensure that confidential informants are used 
appropriately.
    You indicated that the FBI has no policy regarding the need 
to report or cooperate or provide information relative to the 
commission of violent crimes to local or State law enforcement 
agencies. 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?
    Mr. Murphy. Congressman, the attorney general guidelines 
and our implementation----
    Mr. Delahunt. I am not talking about the attorney general 
guidelines. Do they have a legal responsibility currently to 
report evidence both exculpatory or evidence of a crime that 
has been committed when a homicide is being investigated?
    Mr. Murphy. If you will indulge me, Congressman, I would 
like the opportunity to answer that question offline because 
there are various circumstances in which that question might be 
answered differently that would include some of the aspects 
about how we manage sources and how we make decisions about the 
management of sources. And I will appreciate the opportunity to 
answer that question for the record offline from this hearing.
    Mr. Delahunt. Well, I find it--and again, I am not asking 
about policy or equities or guidelines of consideration. 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?
    Mr. Murphy. Congressman, I appreciate the----
    Mr. Delahunt. That is a yes or no answer.
    Mr. Murphy. I would prefer to answer that question for the 
record offline, if you wouldn't mind. Thank you, Congressman.
    Mr. Delahunt. Well, I do mind. And I don't see the reason 
why that answer has to be provided offline. That is a legal 
question. Well, I think you have given me all the information 
that I have needed.
    Do I have any time left, Mr. Chairman?
    Mr. Scott. You have 2 seconds.
    Mr. Delahunt. I will yield it back.
    Mr. Scott. Thank you. Thank you. And we will follow-up on 
that question.
    The Ranking Member of the Constitution Subcommittee, the 
gentleman from Arizona, Mr. Franks?
    Mr. Franks. Well, thank you, Mr. Chairman.
    Thank all of you for being here. I know that it is always a 
difficult environment when we are dealing with this adversarial 
legal system that we have that has served us pretty well. But 
it creates some friction around the interface. So, I know you 
deal with some pretty complex issues.
    Professor Natapoff, you know, it is the contention of the 
FBI that confidential informants are critical to having the 
ability to carry out counterterrorism, national security, and 
criminal law enforcement missions and that a confidential 
source could have a singular piece of information that the FBI 
would otherwise be unable to obtain and that are critical to 
that case. It obviously enables the FBI to execute their 
primary mission of preventing terrorist attacks and crime.
    You cite one example of a case that went wrong, I think is 
the quote in your testimony. And at the same time we have quite 
a few pieces of evidence of thwarted terrorist attacks based on 
tips from confidential informants. How do we bring those two 
realities together?
    Ms. Natapoff. I would also direct your attention to the 
Department of Justice office of inspector general's report, 
oversight report of the FBI's handling of confidential 
informants. The reference is contained in my written testimony. 
The OIG provides actually numerous examples of informants gone 
wrong, if you will, in its investigation of the FBI's own files 
and cases.
    I would suggest that there are many record incidences of 
informants gone wrong. And I think nobody here today is 
disputing the fact that the practice can often go wrong. On the 
other hand, it is clearly of benefit in some limited set of 
cases. I would refer back to Mr. Nadler's question about 
whether we should ban the process altogether, at least in some 
cases.
    I think that your question indicates the potential value of 
the use. In my view, the public policy question is when do the 
costs and benefits recommend that we permit law enforcement, 
permit the government to use this dangerous and risky tool. And 
my recommendations here today have been that legislative bodies 
and the public need more information, particularly about cases 
that go wrong.
    A number of individuals today have made statements such as, 
``There are relatively few cases in which''--and I would 
suggest that that is not a statement that is currently 
supportable across the board. We simply don't have enough 
information about how informants are used at the State, local, 
and Federal level to make founded statements about the general 
state of usefulness and safety of the use of informants. And I 
am suggesting that this Committee consider legislation to make 
that mandatory.
    Mr. Franks. Would you have any suggestions, I mean, related 
to any alternatives that would be as effective in many cases as 
the confidential informant in dealing with these very difficult 
cases where critical intelligence or information is--perhaps 
the entire case hinges on that and the ability to pursue the 
case hinges on that? What are our alternatives? What are our 
best alternatives? And do we have any true alternatives to 
using confidential informants?
    Ms. Natapoff. Sir, I think the answer is yes. A number of 
law enforcement experts here testifying today have indicated 
several times that the use of confidential informants is merely 
a tool in the arsenal of law enforcement. We have many tools. 
We have other investigative resources.
    We have undercover operations run not by criminals, but by 
law enforcement agents themselves. We have wiretaps. We have an 
increasing array of technology in this world that we live in, 
ways of obtaining information.
    I would suggest that to make a responsible decision about 
the use of informants requires us to know better what the costs 
of the use of that particular tool is. And there may be many 
cases where the responsible judgment is it is not worth the 
potential for a wrongful conviction. It is not worth the 
potential for more crimes to be committed. It is not worth the 
threat of additional violence.
    Mr. Franks. Thank you, Professor.
    Mr. Murphy, what is your contention as to the importance to 
law enforcement, to the FBI of confidential informants? I am 
sure that that has been said a dozen ways today. But, you know, 
sometimes people say there are no simple answers. Usually there 
are some simple answers, but they are not easy ones.
    I know this is one of those cases. Can you give me some 
perspective of how important do you think confidential 
informants are to the investigative process? And do we really 
have a way to essentially deal without them entirely?
    Mr. Murphy. I don't think it would be possible to perform 
the mission of the FBI without the capability to have 
confidential human sources. And I believe that we would suffer 
as a Nation if we didn't have that capacity.
    Mr. Franks. Thank you, Mr. Chairman.
    Thank you, sir.
    Mr. Scott. Thank you.
    And the gentleman from Georgia, Mr. Johnson?
    Mr. Johnson. Thank you, Mr. Chairman. While first taking 
the opportunity to offer my condolences on the losses of your 
sons, Ms. Speight and Ms. Donnelly, I would take this time to 
point out that there is a big difference between citizens who 
witness a crime occurring in their neighborhood and then they 
speak up to the police and give information about the crime. 
And they do that from the standpoint of being good citizens. 
And that is not snitching.
    Then on the other hand, you have the situation where 
police, law enforcement officers develop confidential 
informants for use in long-term investigations, say, of mid-
level or high-level drug dealers. And it takes time to make the 
case.
    So, you have a confidential informant that infiltrates the 
organization and then accumulates enough information to cause 
law enforcement to be able to take the organization down. It 
might be a drug organization. It could be espionage. It could 
be any number of crimes.
    The use of confidential informants in that situation is 
distinguished from the use of what is called a snitch on the 
street, in a street war on crime, war on drugs, if you will, 
street war on drugs where local police officers are charged 
with cleaning up the streets of crime. So, the local police 
officers go after low-level drug dealers. They recruit persons 
who are often engaged in criminal activity themselves to give 
them information, sometimes under coercion and under duress and 
threat of arrest. They cause that person--and they develop 
information about, say, drug sales taking place in a house, 
street level drug sales.
    So, an informant, a confidential informant then says that I 
witnessed at, say, Ms. Johnston's house, Reverend Hutchins, I 
witnessed the sale of a small amount of cocaine, of a couple of 
$10 rocks of cocaine at Ms. Johnston's house. And then the 
police then take that information, go to a neutral and detached 
magistrate and say that I have a confidential informant who has 
been reliable in the past, given me information that has 
resulted in arrests and perhaps some convictions.
    That person told me that they witnessed not too very long 
ago the sale of cocaine in that house. So, based on that 
uncorroborated information from a person engaged in crime on 
the streets, the police are able to then obtain a search 
warrant to go in and search Ms. Johnston's home looking for 
additional cocaine.
    So, in the Kathryn Johnston case, that is exactly what 
happened. Isn't that true, Reverend Hutchins?
    So, when the police got that warrant, they went into Ms. 
Johnston's house. They were issued a no-knock search warrant, 
went into the house. Ms. Johnston, who is a 92-year-old lady 
who happens to live in a community where there is a lot of drug 
use, a lot of drug sales, typical inner city neighborhood in 
the war on drugs.
    She has got burglar bars on her house to try to maintain 
her safety. It is dark. Police use a battering ram to bust 
their way in. She, being a citizen with a weapon, fires at the 
police because she doesn't know who they are. It is a no-knock 
search warrant, no announcement.
    She fires off a shot. Then, boom, they riddle her with 
bullets and kill her. So, it was all based on the police 
officers saying that they had a confidential informant. But 
they did not have a confidential informant at that time who 
gave them information.
    So, the whole process is flawed. It puts citizens like Ms. 
Johnston right in the middle of this war on crime, war on drugs 
between the police and the drug dealers. Then the drug dealers 
are being recruited by the police to help them in the war on 
drugs.
    Who is the victim? People like Ms. Johnston. So, that is 
the issue that we really need to address.
    I believe that there needs to be some standards, some 
parameters, as you say, Reverend Hutchins, that are put on the 
police in their use of confidential informants in that 
situation. Because I believe in situations--the second scenario 
that I pointed out, the long-term investigations where police 
are working with informants under Department of Justice 
guidelines--the Department of Justice has some guidelines that 
regulate the use of those types of individuals.
    But I don't believe there are any States that regulate the 
use of confidential informants or, i.e., snitches in the last 
scenario that I pointed out. Then when that case comes to 
court, if there is a jury trial, of course, confidential 
informant is not available because they didn't actually 
participate in the arrest of the accused.
    So no testing, no corroboration, nothing there to help the 
victim in that case, which might be an innocent citizen. And I 
don't know if any of you have anything you would like to 
comment on about what I have said.
    But 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 that puts people in communities at risk.
    Reverend Hutchins. Mr. Chairman, I would just like to 
briefly respond, if I might.
    Mr. Johnson, you are correct. Fabien Sheets was a known 
drug dealer. Mr. Sheets, in fact, was stopped by these same 
police officers that eventually killed Ms. Johnston. And he 
said to them, ``If you will let me go for selling the small 
amount of marijuana that I have sold on the street, what I will 
do is I will tell you where you can go get a kilo of cocaine.''
    Mr. Johnson. And that ended up being----
    Reverend Hutchins. And that is exactly----
    Mr. Johnson [continuing]. False information.
    Reverend Hutchins. Absolutely, it was false information.
    Mr. Johnson. Because everybody knows Ms. Johnston did not 
have half a kilo or any amount of drugs at her home.
    Reverend Hutchins. She did not have--and not only that, as 
we have suggested and as we have been able to build consensus, 
at least locally in Atlanta, if police officers do due 
diligence, they would have known that a 92-year-old woman lived 
there by herself.
    Mr. Johnson. So there was no corroboration?
    Reverend Hutchins. There was no corroboration. There was 
not any appropriate investigative work done. But I think, Ms. 
Jackson Lee, probably the most poignant thing about what 
happened to Ms. Johnston is had she not been 92-year-old and 
had she been my age, 29-, 30-year-old and a young Black man, 
then we might not be having this hearing right now.
    Mr. Johnson. She would have been----
    Reverend Hutchins. The real issue, in my view--and I 
respectfully disagree with Mr. Brooks, is that this problem is 
much, much more widespread than our 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 that 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 against these criminal charges that are put 
on them because of the misuse of this informant system.
    Mr. Johnson. Thank you.
    I will yield the balance of my time. Thank you, Mr. 
Chairman.
    Mr. Scott. Thank you. I think Ms. Speight wanted to briefly 
make a brief comment.
    Ms. Johnson-Speight. While I understand that it is very 
important for citizens to come forward, you know, law abiding 
citizens do that. Oftentimes they are in fear of their lives 
because of retaliation because of folks who are remaining on 
the street committing crime over and over again. Oftentimes the 
same people are committing these murders over and over again 
because they are not taken off the street because no one will 
come forward.
    Oftentimes that is because of the stop snitching piece. 
People are afraid. And it is sending a message throughout the 
communities and throughout the cities that you should not 
cooperate with law enforcement.
    That undermines the whole process of citizens wanting to do 
the right thing, the fear and the lack of the trust of the 
police officers, especially on county levels, that they will be 
protected from the people who are going to retaliate. So again, 
the whole culture of stop snitching is sending a message that 
undermines the whole process of people wanting to do the right 
thing.
    I went to Ms. Donnelly when I saw her on the news, you 
know, asking for help because I wanted to--I knew her pain. I 
knew what she was feeling as the result of the death of her 
son. I wanted to do the right thing. But oftentimes people want 
to do the right thing, but because they are not going to, one, 
be protected and, two, not be supported to do that, they don't 
come forward.
    Mr. Scott. Thank you very much.
    The gentleman from North Carolina, Mr. Watt?
    Mr. Watt. Thank you, Mr. Chairman. And let me start by 
thanking you and Chairman Nadler and the Chairman of the full 
Committee for having a hearing like this.
    I was here for the original testimony of all the witnesses. 
One of the pervasive thoughts that I had during that process 
was that we have spent 6, 8, 10, 12 years unable to have a 
hearing of this kind that exposes a problem that I think 
everyone 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, Black 
males as being predators, you know, the whole process that we 
have been going through.
    And having a hearing of this kind in that political 
atmosphere and with the leadership that we have had of the 
Committee has been impossible. So I think it is wonderful that 
our Chairs are taking this opportunity to expose a problem and 
bring light on it because we can't deal with it in the 
legislative context. Law enforcement is not likely to deal with 
it in an aggressive law enforcement context unless light and 
transparency is there and oversight is there.
    Professor Natapoff, Mr. Murphy was unwilling to give his 
legal opinion in a public venue about the legal and ethical 
responsibilities of law enforcement if they have a snitch who 
delivers evidence that exonerates. I suppose at some point we 
will get that information from Mr. Murphy in a private setting.
    Help me form the context for it in a public setting. What 
is the legal and ethical responsibility of law enforcement, 
Federal law enforcement to provide exculpatory evidence to 
State law enforcement if they obtain it from a snitch or 
otherwise?
    Ms. Natapoff. Thank you, sir. I am unaware of any free-
standing legal obligation that law enforcement would have, 
either police or prosecutors. Of course, we are aware that the 
rules and ethical obligations pertaining to those two groups 
might be somewhat different. But I am aware of no free-standing 
obligation that either group would have to provide that 
information outside the context of an actual criminal 
prosecution.
    Of course, our Constitution provides the due process right 
to Brady exculpatory material if indeed a defendant is 
prosecuted for a crime. That would trigger the obligation of 
the Federal prosecutor's office, if it were a Federal case, or 
a State prosecutor's office, if it were a State case, to 
produce to the defendant any exculpatory information in the 
possession of that office or agency.
    It would not extend to a cross-jurisdictional obligation to 
go looking for exculpatory evidence, as I mentioned in response 
to Mr. Nadler's question earlier, about 4 or 5 years ago, the 
Supreme Court decided a case called the United States vs. Ruiz 
which went to the question of what are the governmental 
obligations to provide such exculpatory information when a 
defendant pleads guilty.
    Of course, that is the bulk of our criminal justice system. 
And 95 percent of all cases, including cases involving 
snitches, involve a guilty plea. And the courts curtailed the 
government's obligation to produce such exculpatory 
information, for example, like the compensation paid to the 
informant witness in that case because that witness, of course, 
would never go to trial.
    One of the things that these Committees could consider is 
amending the Federal rules or passing legislation that would 
require at least Federal U.S. attorneys to provide that 
information in connection with plea bargaining so that light 
could be shed on the use of confidential informants in Federal 
cases in the majority of cases that will, in fact, never be 
litigated in open court.
    Mr. Watt. Mr. Chairman, I see that my time is expired. But 
I also saw that everybody else seemed to be abusing their time. 
So----
    Mr. Scott. Are you going to abuse your time, too? The 
gentleman is recognized.
    Mr. Watt. If I might explore one other area. Because the 
other thing that struck me, especially in Mr. Brooks' 
testimony, was that there seemed to be an attitude that if 99 
percent of law enforcement was handling this appropriately 
there is some occupational risk. And they are acceptable.
    It strikes me that in cases such as Ms. Johnston's, for 
example, and other cases where snitches really violate and law 
enforcement violate, this is one of those circumstances where 
there ought be a legal term applied in the criminal justice 
context zero tolerance.
    How do you get to what would be necessary to get to a zero 
tolerance, zero error posture in this area? Because I think it 
is one of those areas. I mean, you can't bring Ms. Johnston 
back. For Ms. Johnston, this is not a cost-benefit analysis. 
When somebody makes an error, when somebody goes awry in law 
enforcement, you can't do a cost-benefit analysis.
    So how do you at least get to a State where you absolutely 
minimize, if not prevent, these kinds of injustices from 
happening, Mr. Brooks, Reverend Hutchins, Professor, Mr. 
Murphy? Maybe if I could get you all to tell me what you think 
would be a reasonable approach to getting to as close to a zero 
tolerance posture as we could get to.
    Mr. Brooks. Thank you for the question. I think, you know, 
first 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. That conduct should be 
punished vigorously.
    You know, we should have robust and vigorous investigation 
and prosecution of cops when they do wrong because it taints 
the public's trust in us. We have been charged with a very 
solemn duty and a solemn trust. And we cannot violate that 
trust.
    But I can tell you in 32 years in California while there 
were some small procedural errors in the units that I worked 
within, we never had a scandal like that, not even close. The 
reason we didn't was we had strong oversight, strong policies, 
good training, a California peace officer and standards 
commission that mandated that.
    So, you will never--you know, there is never going to be a 
point where there are not issues of corruption. There is never 
going to be a point where there are not cops that are too 
zealous and carry their charge too far.
    But we need to have the oversight, the training, the 
ethical culture. You know, we need to instill an ethical 
culture that says that the ends never justify the means.
    I have supervised narcotic cops since 1981. When I bring 
new officers into my unit, you know, I explain to them, you 
know, we are never going to shade the truth. We are never going 
to lie on the stand. We are never going to push the envelope 
because we are going to have a chance to arrest these people 
again if they are truly out violating crimes. But we only have 
one opportunity to have credibility in our courts and in our 
communities.
    That is the kind of ethical culture that comes from strong 
leadership, good policies, and a lot of training and 
reinforcement of those policies. I wish I could say there would 
never be a Tulia, there would never be an Atlanta. There will, 
just like we will always have abuses in other professions. But 
we can dramatically reduce that if we change.
    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, how many drugs or guns you took off the street. It is 
the quality of the work you can do.
    Let me just finish by saying while it may be distasteful to 
use informants, I worked in a community, was called in to help 
in a community in 1992, the city of East Palo Alto on the San 
Francisco peninsula. Most of you have probably never heard of 
it. But in 1992 it was the per capita murder capital of the 
United States, a city of 15,000 people with 47 drug-related 
murders.
    In 1 year of aggressive enforcement, most of which started 
with information from informants but led to law enforcement 
undercover buys and corroborated information, we arrested a lot 
of drug dealers, the murders were all related to drug turf and 
gang turf. In 1992, we had 47 murders. In 1993, we had two 
murders.
    It is a valuable tool. It saved lives. But it has got to be 
used correctly. And I think this Committee has taken the right 
step in taking a look at ways that we can prevent these abuses.
    Reverend Hutchins. Mr. Watt, Kathryn Johnston was the high-
profile scandal that exposed the problem. But the problem 
existed long before the scandal came. The Federal prosecutor, 
David Nahmias put it as a powder keg. He said it was a problem 
in Atlanta that was waiting to happen but it took the scandal 
to bring the light. I think that now we have the light.
    The real issue, on my view, is that the possibility for not 
confidential informants, but ghost informants or non-existent 
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 
voracity of the law enforcement professionals' assertions to 
the magistrate.
    Ms. Natapoff. Thank you. You asked how can we best minimize 
the impact of the dangers of the use of informants. It is 
really a two-part answer. The first is we need to fix our 
adversarial system, the procedures by which we litigate cases 
in court with reliability hearings, corroboration hearings, the 
new rules.
    We need to fix our investigative and law enforcement 
system, which, of course, is a much larger and more difficult 
process to address. And the various witnesses have spoken to 
that today.
    I would like to second the comments of Commander O'Burke 
and Officer Brooks that the direction that we give to law 
enforcement, the goals that we set for them will determine the 
outcomes and the kind of criminal justice system 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 kinds 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. Those are the kinds of decisions that cannot be made 
by the lone officer on the street corner. They need to be made 
collectively by the executive, judicial, and legislative 
branches.
    Mr. O'Burke. Thank you. I would like to point out something 
that also occurred in Texas, that Tom Coleman, the officer 
involved in the Tulia scandal was nominated by his supervisors 
for police officer of the year and was actually given that 
award. And that is what I am speaking of when I refer to 
paradigm shifts.
    Mr. Watt. I hope that was before Tulia broke.
    Mr. O'Burke. Yes, sir. And I think that is part of Governor 
Perry's recognition of the problem of just sheer numbers of 
counting widgets or arrests without accomplishing anything with 
drug law enforcement was a failed policy. He worked 
aggressively to change that.
    But I think that we need to look at adequate policies and 
procedures. We also need to look at collaboration among law 
enforcement agencies because there is also issues with 
informants who are able to move freely among law enforcement 
agencies without some abilities to track that.
    You know, we have policies and procedures that cover 
establishment, you know, utilization, and motivation. They 
require supervisory oversight and continual review of those 
things. I think that if all agencies are required to have 
established policies and training and at least direction of 
their programs and the goals and objectives they are trying to 
accomplish by using that informant, I think you can certainly 
work toward that zero tolerance.
    My fear is when you ask of zero tolerance that we are still 
dealing with human behavior, whether that be for the officer or 
for the informant being used. So I think we have to shed light 
on the problem and then work toward those issues and 
resolutions, as you discussed.
    Mr. Murphy. Thank you for the question, Congressman. I 
think it is a very important question. I would say I most 
closely associate my own views with those that were presented 
by Mr. Brooks. But I think every member of the panel has 
offered some alternatives that are worth thinking about and 
deliberating about if we are going to approach zero tolerance, 
as you suggested, which I think is an honorable goal.
    Mr. Scott. Thank you.
    Mr. Watt. I apologize for abusing----
    Mr. Scott. You did better than everybody else.
    The gentlelady from Texas?
    Ms. Jackson Lee. Let me thank the Chairman of the 
Subcommittee and the Ranking Member and allow me to echo to 
this Committee and to this room that we have been living in 
shades of gray and darkness in being able to respond to a 
question like this for a number of years in this room. We owe a 
great deal of gratitude to John Conyers who has made a 
commitment to go to places where others would not have gone.
    I am reminded, since he is from Detroit, of Marvin Gaye's 
words, what is going on.
    Reverend, in your instance, mercy, mercy.
    This is a systemic problem. The reason why I say that is 
because I remember coming as a very, very new Member of 
Congress and joining Chairman Conyers and Chairman Scott and a 
number of others circulating around America and holding police 
brutality hearings, which had a number of nuances to them.
    Some of them were gun incidences, obviously. But brutality 
is one word. It is the invasiveness or the untowardness of law 
enforcement.
    Now, our founding fathers had it right. Their basic premise 
wherein the fifth amendment, due process, the eighth amendment, 
cruel and unusual punishment, the sixth amendment, the right to 
a trial by jury by your peers--they understood that there had 
to be legitimate basis that the people could feel that their 
justice system worked.
    I would not trade our justice system for any other kind 
around the world. But we have a system that is fractured. And 
until we understand that and accept that as both advocates and 
law enforcement and legislators, it will continue to be 
fractured.
    So, I join with my colleague from Massachusetts about 
legislation needs to be--and let me just put on the record 
because I think the people of Tulia need to be put on the 
record again, as Ms. Johnston and as Ms. Speight. Let me say to 
you that as I look at the legislation that I have, No More 
Tulias, which is the Law Enforcement Evidentiary Standards 
Improvement Act of 2007, your point of protecting witnesses and 
funding resources has to be addressed.
    And my deepest sympathy to you for the loss of your son. 
But my greatest joy that you have chosen your work, your life's 
work to be dedicated to him. would like to work with you, as 
your congressperson, Congressman Johnson, who has shown such 
leadership on this Committee, to be able to see how we can 
protect or provide resources for witnesses.
    Because I know that while we speak here in this room--and I 
always say that the lights are on, we are secure--it is not so 
easy to tell a witness come forward. Because we are not in 
their shoes. We need to give them the comfort, the protection, 
the support.
    It should not be for 24 hours. It should not be for the 
time for the trial. It should be ongoing. I know there is a 
witness protection program. But in our communities, it has to 
be a little different.
    So, the Tulias need to be on record. Our friend is here 
from Texas. Fifteen percent of that population were persecuted 
by uncorroborated testimony of a rogue cop. Lives were broken. 
Grandmommas lost their life savings to get their children out. 
I don't think the state of Texas responded as quickly as it 
should because they went through the judicial system, 
collaborated with a prosecutor who relied on one voice.
    So, the premise of the No More Tulias said, in particular--
and I read this one sentence, which it has to do with Federal 
Byrne grants. The States that do not have laws that prevent 
conviction for drug offenses based solely on uncorroborated 
testimony of law enforcement officers or informants. So it goes 
to the next step of prosecution.
    In the instance, Reverend, of your circumstance, I believe 
there is a trigger as well to the instance of kicking in 
someone's door not on uncorroborated evidence, no matter how 
rehabilitated and how much rebornism this so-called informant 
says that he or she has partaken in.
    So my question, Reverend, to you--and I ask this on the 
basis of my good friend's No More Tulias or zero tolerance. 
One, I would commend you to H.R. 253, which lays a premise for 
legislative action. And I look forward to its refining based 
upon this hearing.
    But isn't it tragic that through Federal funding we 
encourage law enforcement officers to have incentives or 
competition or pressure to make convictions to keep Byrne 
grants or Federal funding? That is my first question.
    Second, as a municipal court judge, I gave out probable 
cause warrants. And I don't have the fineness of the points 
that Ms. Johnston, whether these guys were going with a 
warrant. It seems that they were no-knock.
    But based upon cops coming in undercover, I remember 
sitting at 11 p.m. at night, 12 midnight on the basis of their 
evidence. I thought they were good guys. I didn't condemn them. 
They saw somebody sitting somewhere or somebody had just told 
them their guy was out in the car, their guy was on the corner 
that had just given them the word.
    This is a very difficult and seedy process. I understand we 
have got to protect the innocent.
    But if you would speak to that question of the pressure of 
Federal funding that requires you to make deals and get 
prosecutions to keep that money flowing. And I would appreciate 
the FBI speaking to it, the professor speaking to it, and Mr. 
Brooks speaking to it, please.
    Reverend?
    Reverend Hutchins. I think, Congresswoman, that anytime 
funding and money is tied to arrests and convictions poses a 
serious problem, particularly for those that look like I look, 
that live where I live, and that deal with what I deal with on 
a daily basis. As I suggested before, the people who are most 
often victimized because of the tying and the inextricably 
linked resources around arresting and prosecuting people on 
these kinds of drug charges cannot be removed.
    We have to understand that it is directly tied to the kind 
of misconduct and behavior that led to Tulia, led to Kathryn 
Johnston, so on, so on, so on, and so on. I think there has not 
been enough, quite frankly, calling a spade a spade, the way 
you have done here today. The reality is that most often when 
resources are tied to arrests and conviction, people that are 
Black and brown and in lower incomes suffer exponentially and 
disproportionately.
    But I think to further your point, 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 a hysteria.
    Ms. Jackson Lee. I am going to ask--and I thank you, 
Reverend. And not in reference to you, but I am going to ask 
the next witnesses just to be brief in their answer because I 
will finish on that with two questions to Ms. Speight and the 
gentleman from Texas, a quick question.
    If you would just be very brief, Mr. Brooks.
    Mr. Brooks. Yes, Congresswoman. You are absolutely right 
that 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. And we need----
    Ms. Jackson Lee. Do you think it is fair to have 
corroboration?
    Mr. Brooks. Absolutely. In fact, I have never done a case 
where we didn't have corroboration. I have done thousands.
    Ms. Jackson Lee. I thank you. Thank you, sir.
    Ma'am, just go quickly on to the other witnesses. Can you 
just go on, Professor, please? I can't see your names there. 
Just go on quickly.
    Ms. Natapoff. Thank you. I agree with the other witnesses. 
I would also recommend that while we are tying requirements to 
Federal funding, we considered tying that Federal funding to 
accountability and transparency and record keeping at the State 
and local level.
    Ms. Jackson Lee. Excellent. Do you think corroboration of 
law enforcement and informant evidence is important?
    Ms. Natapoff. Absolutely.
    Ms. Jackson Lee. Thank you.
    The FBI?
    Mr. Murphy. Yes, ma'am. I believe it is a problem that we 
need to be conscious of the behavior that we are creating when 
we tie funding to statistics. We need to make certain that we 
are using an informant program that is based on corroboration.
    Ms. Jackson Lee. I thank you.
    Ms. Johnson-Speight, would the protection of witnesses' 
money--I don't mean to use the term money--resources and 
assistance to those, as the reverend has indicated, good 
citizens who come forward that would help in your son's case--
is that a valuable consideration for this Committee?
    Ms. Johnson-Speight. Absolutely. I think that you expect 
people to come forward. But they have to be supported. They 
have to know that they can be supported in that effort 
legislatively or however it can be done. You shouldn't have a 
witness coming into a courtroom with a stop snitching t-shirt 
on. That is absurd. So those are the kind of things that are 
happening. It is a culture that has just gone crazy. And it has 
sent a message throughout the communities that you don't talk 
because of retaliation.
    Ms. Jackson Lee. And we should separate that out from 
informants?
    Ms. Johnson-Speight. Absolutely.
    Ms. Jackson Lee. We thank you much.
    My last question is to my good friend from Texas. Let me 
thank you for being here. I would look forward to working with 
you. My question to you is were there civil compensation by the 
State to Tulia victims out of the reform that the governor 
offered.
    Mr. O'Burke. I am not aware if the governor offered that. I 
believe----
    Ms. Jackson Lee. No, no, no. Out of the reforms that the 
governor encouraged you to have, were there suggestions of 
civil compensation to those victims?
    Mr. O'Burke. I am unaware of that. I know that there was a 
lawsuit settlement to some of those victims. But I am not privy 
to the details of that. I know the city of Amarillo, I believe, 
paid out a settlement to some of those victims.
    Ms. Jackson Lee. And you agree with corroboration of law 
enforcement testimony?
    Mr. O'Burke. We currently have a corroboration law in 
Texas. But it only extends to cover the informant.
    Ms. Jackson Lee. Okay.
    Mr. O'Burke. But as a general practice, we include that for 
officers as well.
    Ms. Jackson Lee. Let me thank you. I look forward to 
working with you. I want to read this more extensively on some 
of your reforms.
    Mr. Chairman, I thank you very much. I hope that we can 
move swiftly to responding to the excellent testimony that we 
had here today to save lives and to be able to cease the abuses 
that we have seen over the years on these cases. I yield back.
    Mr. Scott. Thank you. Thank you very much.
    I think the gentleman from Michigan wanted to be recognized 
for a unanimous consent.
    Mr. Conyers. I would like to introduce into the record the 
Law Review article of Professor Natapoff which deals with 
informants and the institutional and communal consequences into 
the record.
    Mr. Scott. Without objection.
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    Mr. Conyers. Thank you.
    Mr. Scott. Thank you.
    I had one other question.
    Mr. Brooks, we have heard that the benefit that could be 
obtained if we eliminate these ghost informants if the 
confidential informant would just show up in court before the 
magistrate for the warrant. Are there practical, real life 
problems with having the confidential informant show up 
downtown in front of the magistrate?
    Mr. Brooks. I think there is a couple of problems. First of 
all, the sheer volume of law enforcement work, I believe, would 
clog the State and local courts, perhaps not the Federal courts 
because the volume is different. And also there are many 
informants that are providing background information only never 
plan on appearing as a witness that certainly may be 
intimidated and dissuaded from cooperating with law 
enforcement.
    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 full bio. We 
keep records on every single case that they do. And those 
records are available for review by magistrates in every case.
    In the case where the magistrate has a concern, we 
certainly make those informants available in camera for review 
by the magistrate having jurisdiction. But I think as a regular 
course, parading informants in and out--they are going to be 
concerned for their safety.
    And by sheer volume, our courts are overloaded. They have 
trouble keeping up with the volume they currently deal with.
    Mr. Scott. Professor Natapoff, is there a problem with 
requiring confidential informants to show up before the 
magistrate?
    Ms. Natapoff. Well, it is certainly a logistical burden. 
But all due process is a logistical burden. I certainly think 
there are instances of certain kinds of crimes. There are 
certain kinds of allegations where it would make sense to have 
heightened requirements that law enforcement actually produce 
an informant, not only in the individual case, but it would 
also change the culture of the idea that ghost informants are a 
possible option.
    Mr. Scott. Thank you.
    Does the gentleman from Georgia, the gentleman from 
Michigan have any final questions?
    The gentleman from Michigan?
    Mr. Conyers. I merely want to commend you, Chairman Scott, 
and Nadler as well and the witnesses. As was observed by 
Congressman Watt, this is the first time we have got into this 
matter in more than a dozen years. And as good as this hearing 
was--and I want to commend the law enforcement people that are 
here because outside of that one question that Mr. Murphy 
declined to answer posed by Mr. Nadler, there has been a lot of 
forthcoming here.
    But this is only the tip of the iceberg. I mean, we have 
got to hold the most fair hearings in recent American history 
on the whole question of the criminal justice system, which 
goes way beyond informants. It has 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 has got to 
be changed.
    And one hearing starts us off. I am very, very proud of 
what we have accomplished here. I compliment all of those who 
have come forward.
    Mr. Scott. Thank you. I am advised that we have to very 
quickly adjourn to allow another Subcommittee. But I will 
recognize the gentleman from Georgia.
    Mr. Johnson. Well, I just simply wanted to commend first 
you, Chairman Scott, Chair of this Subcommittee, and also the 
Chair of the full Committee, Chairman Conyers, for the way that 
you have conducted our proceedings during my short 7 months 
here. I don't know what happened before then, but I do know we 
have made a tremendous amount of progress at bringing light to 
issues that have been held in the dark for so long. I just want 
to commend you both for your activities. I look forward to 
serving with you further.
    Mr. Scott. Thank you very much.
    I would like to thank the witnesses for their testimony 
today. Members may have additional written questions for the 
witnesses. If they are forwarded to you, we ask that you answer 
them as promptly as you can to be made part of the record. 
Without objection, the hearing record will remain open for 1 
week for submission of additional materials.
    I will ask all of the audience to vacate the room as 
quickly as possible. There is another Subcommittee meeting that 
is about to convene.
    We want to thank the witnesses for their testimony.
    Without objection, the Committee stands adjourned.
    [Whereupon, at 12:47 p.m., the Subcommittees were 
adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
  in Congress from the State of Michigan, Chairman, Committee on the 
Judiciary, and Member, Subcommittee on the Constitution, Civil Rights, 
                          and Civil Liberties
    Confidential informants play a unique role in law enforcement. With 
proper guidance and practices, they can provide valuable leads to help 
law enforcement officers better target their investigations and 
prosecute criminals. Without such guidance and practices, however, 
serious consequences may result.
    Unfortunately, today's hearing is prompted by a series of 
incidences involving the abusive, unethical, and unlawful use of 
confidential informants by law enforcement officers.
    In particular, there have been repeated reports where confidential 
informants were improperly incentivized to fabricate leads after being 
offered plea bargains, financial awards, and other inducements. There 
are also reports that law enforcement officers, in some instances, have 
misused confidential informants to increase and justify arrests and 
grant funding.
    This problem was brought home to me in May, when I met with 
Reverend Markel Hutchins, one of today's witnesses, and former 
confidential informant, Alex White, regarding the case of Kathryn 
Johnston. The circumstances surrounding Ms. Johnston, particularly as 
it pertains to confidential informants, is extremely troubling. It is 
one of the reasons why we wrote to the Department of Justice, held a 
press conference, and holding this oversight hearing.
    Ms. Johnston, a 92 year old woman, was shot and killed in her 
Atlanta home after police obtained a no-knock warrant based on a false 
affidavit allegedly from a confidential informant. When things went 
terribly wrong, the police tried to coerce the confidential informant, 
who was the apparent source of the false affidavit, to lie. 
Fortunately, the informant refused and the truth came to light.
    Sadly, this incident in Atlanta is not an isolated case. Similar 
incidents have occurred in cities across the Nation. For example, an 
informant's uncorroborated statement led to the arrest in 2002 of 15 
percent of the African American men, aged 18 to 34, in Hearne, Texas.
    That same year, the Dallas ``Sheet Rock Scandal'' occurred in which 
an informant was payed $200,000 to provide a false story. The police 
used that informant and crushed gypsum made to look like cocaine to 
arrest 86 Mexican immigrants with limited English language skills.
    In many of these cases, federal taxpayer money--including Byrne 
grants--was used. These funds should be used to fight crime, not to 
subsidize killing a 92 year old woman and arresting innocent people 
with false evidence obtained from improperly influenced confidential 
informants. Practices such as these severely undermine the integrity of 
law enforcement, results in invalid convictions, violates the rights of 
innocent civilians, and does nothing to make the public any safer.
    We should know what, if any, standards exist with respect to how 
federal, state, and local law enforcement agencies use confidential 
informants to prevent abuse. If federal money and agencies are used in 
an investigation, we must insist that those investigations abide by 
reliable and credible guidelines on the use of confidential informants. 
These guidelines should apply at the state and local level.
    I look forward to getting answers to these questions and others 
today. I thank Mr. Nadler and Mr. Scott for convening today's hearing 
on this matter, as well as the witnesses who will offer substantial 
insight through their testimony today.

                                

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
    Representative in Congress from the State of Texas, and Member, 
        Subcommittee on Crime, Terrorism, and Homeland Security
    Mr. Chairman, I thank you for holding this very important hearing 
on the law enforcement confidential enforcement practices. As members 
of the Judiciary Committee, one of the most important roles we 
collectively serve is that of guardian of civil and constitutional 
rights of all individuals. In that respect, where there are questions 
of misuse or abuse of individual civil rights or other rights protected 
under the United States Constitution, it is our duty as Members of the 
Judiciary Committee to diligently and vigorously investigate to 
decipher whether the alleged abuses or concerns merit such scrutiny.
    This Committee has the opportunity to gain insights into the 
allegations of the increasing number of civil rights abuses carried out 
through the law enforcement confidential informant practices. I would 
like to welcome and thank our witnesses: Mr. Wayne Murphy, Professor 
Alexander Natapoff, Commander Pat O'Burke, Ms. Dorothy Johnson Speight, 
Mr. Ronald E. Brook and Reverend Markel Hutchins. I hope that your 
testimony here today will prove fruitful in guiding this Committee in 
its findings with regard to whether law enforcement officers have 
engaged in confidential informant practices that intentionally violate 
the civil or constitutional rights of any individual.
    Mr. Chairman, the purpose of this hearing is to examine law 
enforcement practices and their impact on civil and constitutional 
rights. Of particular concern is the continuing controversy of the use 
of confidential informants in drug enforcement. Despite its impact on 
the criminal justice system, the practice has been subject to minimal 
federal oversight. Through this hearing, we also hope to explore three 
pressing concerns with respect to how the use of confidential 
informants has (1) influenced the practice of plea bargaining, (2) 
increased the potential for abuse due to the inherent secrecy of the 
practice, and (3) has affected poor and minority communities. This 
Committee will also explore policies designed to limit the potential 
for abuse.
    The use of confidential informants in the U.S. justice system has 
become an ever-growing, unchecked practice which has given rise to 
civil rights abuses. Every year, law enforcement officials create 
convenient alliances with criminal suspects who become informants, many 
of them drug offenders concentrated in inner-city neighborhoods. These 
criminal offenders informally negotiate information and undercover work 
for promises of leniency. In many cases, however, law enforcement 
hastily and carelessly rely on what is often self-serving information 
from criminal offenders.
    As a result, the criminal offenders are wrongly granted leniency 
and other individuals are falsely implicated in criminal activity. 
Thus, the alliance between the law enforcement officer and the 
informant is fraught with peril, being nearly without judicial or 
public scrutiny as to the propriety, fairness, or impact the deals have 
on the community. What is even more disturbing is that law enforcement 
officers often fail to corroborate the veracity of informant 
information, the ``get tough'' policies of the ``war on drugs'' 
pressure police departments to increase arrests, and departmental 
informant policy and oversight is the exception not the norm. Not 
surprisingly the alliance between law enforcement and informants has 
resulted in tragic civil rights violations.
    Mr. Chairman, there is also enormous potential for abuse due to the 
inherent secrecy of the practice. As law enforcement has increased its 
dependency on informants, the quality of investigations has declined 
and scrutiny of the informants has receded. Prosecutors have complained 
that there is no way of knowing whether the information that the 
informant provides is true and their concern is well founded. One study 
has shown that 45.9 % of documented wrongful capital convictions have 
been from false informant testimony.
    There have been a number of truly disturbing cases where informants 
have intentionally wrongly implicated individuals in criminal activity 
for the soul reason of receiving leniency. Of the most notorious 
informants was Leslie Vernon White, an admitted ``jail house snitch.'' 
White had made a career of creating false testimony to gain leniency 
for his own crimes by learning the details of his fellow inmates' 
crimes. In one 36-day period, he gave Los Angeles County prosecutors 
information about three murder cases, all from information he learned 
from fleeting encounters with inmates. In another case, Ron Williamson 
became one of 13 death row inmates who were ultimately freed because 
DNA proved his innocence--in Oklahoma alone. We must ask ourselves how 
many more defendants are on death row and in the prison population at 
large have who not been fortunate enough to have DNA evidence overcome 
an informant's lies.
    One of the most egregious cases of civil rights abuse occurred in 
2006 when 92-year-old Kathryn Johnson was shot to death in her Atlanta 
home when the Atlanta Police Department officers burst into her house 
to execute a search warrant obtained through a false affidavit. In the 
affidavit to obtain the warrant for Ms. Johnson's home, police officers 
Gregg Junnier and Jason Smith claimed that an informant had bought 
drugs inside the home while they waited outside. After the shooting, 
the informant in question, Alex White denied ever making a drug 
purchase in Ms. Johnson's home. The officers threatened White and gave 
him a fabricated story to tell investigator but White refused to lie 
for the officers. Instead, he went to federal authorities, exposing the 
officers. The officers pled guilty to manslaughter on April 27th of 
this year. In other examples, informants' fabricated evidence falsely 
accusing citizens of Hearne, Texas and Dallas, Texas. In 2002, in the 
town of Hearne, the uncorroborated word of an informant led to the 
arrest of 15% of the Hearne's African-American men ages 18-34; Hearne 
is a 5,000 person rural community in East Texas.
    Mr. Chairman, the informant institution has a disproportionate 
negative impact on low-income, high-crime, urban communities in which 
many residents--as many as 50% of African American males in some 
cities--are in contact with the criminal justice system. They are 
therefore potentially under pressure to provide information to gain 
leniency.
    In recent years, it has become clear that programs funded by the 
Edward Byrne Memorial Justice Assistance Grant program unintentionally 
have exacerbated racial disparities, led to corruption in law 
enforcement, and resulted in civil rights abuses across the country. 
This is especially the case when it comes to the program's funding of 
hundreds of regional narcotics task forces. These task forces, which 
have often lacked meaningful state or federal oversight and therefore 
are prone to corruption, are at the center of some of the most 
egregious law enforcement scandals.
    One of the better known federally-funded drug task force scandals 
occurred in Tulia, Texas several years ago. In Tulia, 15% of the 
African American population was arrested, prosecuted, and sentenced to 
decades in prison based on the uncorroborated testimony of a federally-
funded undercover officer who had a record of racial impropriety in 
enforcing the law. The Tulia defendants have since been pardoned, but 
similar scandals continue to plague the Byrne grant program.
    These scandals are not the result of a few ``bad apples'' in law 
enforcement; they are the result of a fundamentally flawed bureaucracy 
that is prone to corruption by its very structure. Byrne-funded 
regional anti-drug task forces are federally-funded, state managed, and 
locally staffed, which means they do not really answer to anyone. In 
fact, their ability to perpetuate themselves through asset forfeiture 
and federal funding makes them unaccountable to local taxpayers and 
governing bodies.
    That is why I introduced H.R. 253, (the ``No More Tulias: Drug Law 
Enforcement Evidentiary Standards Improvement Act'') to address the 
issue of confidential informant abuse. The bill prohibits a state from 
receiving for a fiscal year any drug control and system improvement 
(Byrne) grant funds under the Omnibus Crime Control and Safe Streets 
Act of 1968, or any amount from any other law enforcement assistance 
program of the Department of Justice, unless the state does not fund 
any anti-drug task forces for that fiscal year or the state has in 
effect laws that ensure that: (1) a person is not convicted of a drug 
offense unless the facts that a drug offense was committed and that the 
person committed that offense are supported by evidence other than the 
eyewitness testimony of a law enforcement officer (officer) or 
individuals acting on an officer's behalf; and (2) an officer does not 
participate in a anti-drug task force unless that officer's honesty and 
integrity is evaluated and found to be at an appropriately high level. 
The bill also requires states receiving federal funds under this Act to 
collect data on the racial distribution of drug charges, the nature of 
the criminal law specified in the charges, and the jurisdictions in 
which such charges are made.
    We need to continue to seek solutions that will put in place 
effective guidelines for using confidential Informants in order to 
avoid civil rights abuses. I look forward to hearing from our witnesses 
today in our attempt to gain some guidance on this very serious matter.
    Thank you. I yield back the balance of my time.

                                

 Prepared Statement of the Honorable Betty Sutton, a Representative in 
  Congress from the State of Ohio, and Member, Subcommittee on Crime, 
                    Terrorism, and Homeland Security
    Thank you very much, Chairman Scott and Chairman Nadler for holding 
this hearing to call attention to an issue of vital importance.
    And I would like to thank you, Congressman Forbes, Congressman 
Franks and all of my colleagues for the very warm welcome I've received 
as a new Member of the Committee and of the Crime Subcommittee. I'm 
deeply honored by the chance to serve with all of you.
    It's my hope that today's hearing will shed some shed some light on 
a part of our criminal justice system that has not received the kind of 
Congressional scrutiny it deserves.
    The relationship between confidential informants and law 
enforcement resides in a bit of a grey area. The very nature of those 
relationships precludes total transparency, but the lack of oversight 
and accountability may be inviting abuse.
    There is no doubt that the use of confidential informants is 
critical to law enforcement. There is also no doubt that the practice 
contains a substantial risk of error.
    Striking the right balance, and applying the right standards is 
critical.
    It's critical because, when that balance is not struck, innocent 
third parties sometimes pay the price.
    At the state and local levels, we lack uniform standards to deal 
with confidential informants, and, as such, there is little evidence 
that speaks to the reliability of informants, the propriety of deals 
that are made, and other important considerations.
    What's missing from our current system is a way to ensure all 
parties involved remain accountable. This hearing is a first important 
step in exploring the best way to accomplish this.
    The Department of Justice has formulated a set of guidelines for 
the use of confidential informants that have been successfully employed 
at the federal level; the state of Texas has reevaluated their system 
of task forces in order to provide better oversight.
    By learning from the successes of these and other systems, I hope 
we will be able to find a way to implement appropriate federal 
guidelines on confidential informants that will strengthen the 
integrity of our criminal justice system.
    I look forward to the testimony of today's panelists as we explore 
this issue, and I would like to thank all of them for taking the time 
to join us today.
    Thank you, Mr. Chairman. I yield back the balance of my time.

                                

 Prepared Statement of the Honorable Trent Franks, a Representative in 
Congress from the State of Arizona, and Ranking Member, Subcommittee on 
          the Constitution, Civil Rights, and Civil Liberties
    Thank you, Chairman Scott and Chairman Nadler for holding this 
joint oversight hearing on law enforcement confidential informant 
practices.
    Human sources play an important role in criminal investigations. On 
July 17th, police in California arrested a Mexican immigrant one year 
to the day after a hit-and-run in Oregon that killed a young jogger. A 
confidential source informed police that the suspect had fled back to 
Mexico. Luckily, a subsequent tip from a second confidential source led 
police to Lodi, California, where the suspect was arrested.
    In Port Richey, Florida, a tip from a confidential informant led 
police to the house of a man who had been holding a 19-year-old 
mentally ill woman as a sex slave for himself and eight other men.
    A confidential source also tipped off police in Waynesboro, 
Pennsylvania, that a man charged with threatening to kill three police 
officers was plotting to shoot courthouse employees and blow up the 
courthouse.
    These are but three examples of the numerous criminal cases that 
are aided or even solved with the help of confidential sources. I 
welcome the opportunity today to review the use of confidential 
informants and to discuss ways that law enforcement can improve their 
procedures for human sources.
    The nation's law enforcement agencies have the tremendous 
responsibility of balancing the use of human sources with the 
protection of civil liberties and due process rights. Any law 
enforcement tool that is misused to the detriment of these rights does 
a disservice to our criminal justice system.
    We will hear today about the 1999 drug arrests in Tulia, Texas. In 
one day, ten percent of the African American population of Tulia was 
arrested on drug charges stemming from an undercover drug operation. 
The court later threw out the thirty-eight convictions from this sting 
finding that they were based solely on the unreliable testimony of one 
person.
    Although the convictions were tossed and the remaining arrestees 
were released, the damage had been done. Damage to the reputations and 
civil rights of those who were wrongly accused and damage to the 
community's trust in law enforcement.
    My hope today is to learn what steps can be taken by state and 
local law enforcement agencies to prevent these tragedies and ensure 
accurate, comprehensive investigating of criminal offenses.
    I look forward to hearing from our witnesses and I yield back the 
balance of my time.

                                












































































































                                














                                 
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