[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
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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
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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.
[The article follows:]
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
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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.