THE INFORMANT

THE JUDAS FACTOR

It happened a long time ago.

Corrupt religious and community leaders learned that a young man was
traveling around the countryside inciting people with harsh criticism of their
leadership. People listened to this man. They began to question these
leaders. Feeling threatened by the new order this young man advocated, the
leaders decided he must die – but he had to be killed legally within the
framework of the criminal justice system.

But the young man was so popular that large crowds followed him,
protecting him from enemies. The leaders realized that a public arrest would
precipitate a riot, so they conspired to get him away from his followers so he
could be arrested. They laid traps for him but he always managed to elude
them as though the hand of God was guiding him.

The leaders were near the end of their wits when one of the young man’s
closest confidants offered to help. Some say he was motivated by 30 pieces
of silver; others say it was anger at the young man’s message of hope and
forgiveness. Whatever the motive, the cooperating confidant led the young
man into a trap where he was taken into custody by the soldiers. The young
man was tortured, tried, convicted, and executed.

The confidant’s betrayal has never been forgotten, or forgiven. The traitor’s
name, always the subject of infamy, was Judas Iscariot – one of Jesus
Christ’s twelve disciples.

THE FISHER HOUSING PROJECT CASE

As a member of society enjoying all the benefits of law and order, a citizen
has a moral obligation to support and assist in the maintenance of social
order. A citizen is not only expected but has a fundamental duty to report to
law enforcement authorities emergencies, crises, accidents, crimes, or
anything that threatens social order.

But there is a significant difference between this social duty and the betrayal
of Judas. Iscariot was a police informant. His actions were not motivated by
duty to preserve the social good. He was motivated by personal interest. He
coveted and betrayed the trust of another. He sold his services to law
enforcement – he gave up someone in exchange for a benefit. He was a
police informant.

Most people do not like informants, or “snitches” as they are known in the
common vernacular. Most police who work with them do not like them, but
these same police say informants are essential to effective law enforcement.
They point to the “war on drugs” as an example, saying that informants live
and survive in the drug subculture in a way that “undercover’ cops cannot.
And police quickly utilize informants when one of their own is killed
because they need “information” fast, not only to solve the crime but to fuel
their outrage against the “cop killer.”

Take for example the murder of New Orleans police officer Gregory
Neupert near the Fisher Housing Project in 1980. The New Orleans police
department launched a swift, and brutal, search for the “cop killer” in the
area. The quickly developed information from “reliable informants” that
Reginald Miles and James Billy, Jr. killed the officer. The police raided
Billy’s apartment, killing him in an alleged shootout. They next raided an
apartment occupied by Miles and his girlfriend, Sherry Lynn Singleton, and
killed them both in another alleged shootout.

There was intense outrage against the police killings by the African-
Americans community. This outrage triggered a number of governmental
and activists investigations, prompting the resignation of Police
Superintendent James Parsons. The two alleged police informants, Johnnie
Brownlee and Robert Davis, came forward telling the local news media that
they had been beaten by the police to provide information against Miles and
Billy.

“They kept on showing me Billy’s picture and making it clear that they
wanted me to identify Billy as a man who was standing on Nunez Street
[scene of the Neupert killing],” Brownlee said. “My mouth was bleeding,
my face was bleeding where they hit me with a pistol and where I now have
a scar, and they said they would kill me if I did not identify someone and
then let me know by showing me Billy’s picture over and over again that
they wanted me to say it was him.”
It was during this era when police misconduct with informants was
becoming increasingly more prevalent in the nation’s declared “war on
crime” that the United States Justice Department announced “new
guidelines” which allowed FBI informants to commit serious crimes in
certain “paramount” investigations. While the guidelines prohibited
informants from participating in any crime “without authorization or
approval of an appropriate government official,” the guidelines granted
authority to FBI supervisors to determine whether “the conduct is necessary
to obtain information or evidence for paramount prosecution purposes.”

Pointing out that informants were critically important in investigations of

organized crime, Ku Klux Klan, and other criminal elements, former FBI
Director Daniel Webster defended the guidelines, saying: “I think the days
are gone when an FBI agent can wander into a bar and order a glass of
milk.”

Nearly three decades later informants have become pervasive throughout the
American culture. They are utilized in law enforcement, business, schools
(from pre-grade to college), professional sports, entertainment industry, IRS,
crime-stoppers, America’s Most Wanted, prisons, and even churches. In a
highly political, competitive, and fearful society, information is a prized
commodity that translates into the accumulation of individual benefits and a
general opportunity to influence the shape of events. For the criminal
informant, it means providing the direction and even the outcome of a
criminal investigation and subsequent prosecution by the government.

Clearly, the demand for informants in today’s information-driven society is a

growth industry as evidenced by the “don’t snitch” campaign in the rap
culture. The line is long, and getting longer, for those willing to offer their
services as professional informants for personal gain, and it has become a
natural component of criminal wrongdoing to become a “cooperating
witness.” The Mafia has literally snitched itself out of business. Former New
Orleans District Attorney Harry Connick, Sr. worked for years as a public
defender and was left with the impression that most criminals wanted to
cooperate with the cops.

“They would often bring it up themselves,” the deceased Connick said

nearly thirty years ago while district attorney. “They would say – ‘Look,
why don’t you do this – I can give information to the police, but I want some
consideration in this particular case.’ I was duty-bound to convey their
suggestions to the Police Department. Of course, they knew they wouldn’t
be identified and that there’s no problem with the person they were putting
the rap on.”

THE SAGA OF RICKY TERREBONE

In 1975 Ricky J. Terrebone was a 21-year-old heroin addict living in

Jefferson Parish, Louisiana. Two undercover agents of the Jefferson Parish
Police Department and one of their paid informants were engaged in casual
conversation on September 18 that year. Their conversation was natural,
casual as they talked about business of the streets. The conversation turned
to drugs.The informant knew Terrebone. The agents asked if Terrebone had
any. The informant said he did. They all went to Terrebone’s residence.
They asked for drugs. Terrebone said he didn’t have any drugs but
volunteered to “score a bundle” (25 individual packets) of heroin for them.

The agents drove Terrebone to a nearby telephone booth where he called his
supplier. The agents and Terrebone returned to his residence. After a brief
wait, the supplier drove up to Terrebone’s residence. The agents gave
Terrebone $175 for the drug purchase. Terrebone walked to the supplier’s
car, gave him the money, and returned to the house with 22 packets of
heroin. The agents gave Terrebone three packets and left with 19.

The informant was Lionel Parks. Earlier that night he had been at
Terrebone’s house talking about “scoring” some heroin. Parks told
Terrebone he would pay for the score and get him high as well. Terrebone
was a married father of one child. He worked as a carpenter. He was not a
criminal. He was an addict. He fed his habit by working as a middle man,
scoring bundles from his supplier and taking 2 or three packets off the top
for his own use. Parks knew this.

Parks was on parole. He was doing drugs, stealing, and anything else it took
to survive. Several weeks before the Terrebeone deal Parks stabbed an
undercover agent while high on heroin. He made a “deal” with the police to
bust others if they would not violate his parole or charge him with stabbing
the agent.

Terrebone was arrested several months after the September 18 transaction.

He was tried, convicted, and sentenced to life imprisonment without the
benefit of probation or parole under Louisiana’s new tough anti-drug law.
His case would run the gamut in both the state and federal courts challenging
the constitutionality of the state’s “drug life law” to no avail.
Ricky Terrebone spent more than thirty years in the Louisiana prison system
before being released a terminally ill, cancer-ridden old man. He was just
one of hundreds of defendants convicted under the Louisiana’s drug law
which was patterned after New York’s “Rockefellar law.” Most were small-
time “street addicts” set up by informants. Some died in prison, a few
managed to secure their release, but most remain in prison where they will
also die.

THE WHITEY BULGER FACTOR

The Boston GLOBE in 2003 reported about the findings of a two-year study
by the House Committee on Governmental Reform into the 40-year history
of the FBI’s use of organized crime figures as informants in the New
England area, particularly the infamous South Boston underworld boss
James Whitey Bulger. The report found that, according to the GLOBE, “FBI
agents became corrupt, encouraged perjury in death penalty cases, let
innocent men languish and die in prison, and allowed people to be murdered,
all in the name of protecting informants.”

The congressional committee called the FBI’s use of these informants,

especially Bulger, “one of the greatest failures in the history of federal law
enforcement.”

Still the committee found that the use of informants by law enforcement is
essential during an era “when the United States is faced by threats from
international terrorism, and a number of law enforcement tools are being
justifiably strengthened.” But the committee’s report said that the “results of
the committee's investigation make clear that the FBI must improve
management of its informant programs to ensure that agents are not
corrupted … The Committee will examine the current FBI's management,
security and discipline to prevent similar events in the future."

The title of the congressional report itself was disturbing: “Everything Secret
Degenerates: The FBI’s Use of Murderers as Informants.” More disturbing
was the fact that the U.S. Justice Department did not cooperate with the
congressional investigation and actually tried to obstruct it.
"Throughout the Committee's investigation, it encountered an institutional
reluctance to accept oversight," the report states. "The Committee has
concluded that the Justice Department failed to take responsibilities to assist
Congress as seriously as it should have."

The highly critical congressional report was one of many revelations at the
time about the FBI’s use of organized crime figures as informants. One such
informant was the violent and murderous underworld hitman, Joseph “The
Animal” Barboza. The report cited a recorded conversation between
Barboza and New England crime boss Raymond L.S. Patriarca during which
“The Animal” said he planned to murder a rival by burning down his
apartment even though the target’s mother might be inside. The FBI had
already used this thug to frame four men for the 1965 murder of a petty thief
named Edward “Teddy” Deegan. Two of the men died in prison and the
other two were released after serving more than 30 years in prison before a
federal court investigation resulted in their release.

"The use of murderers as government informants created problems that

were, and continue to be, extremely harmful to the administration of justice,"
the report states.

FBI Director Robert Mueller embraced the report’s call for reforms.

"When Director Mueller was brought on board, his intent was to change the
direction of the FBI and move it into the 21st century," spokesman Edwin
Cogswell said. "While the FBI recognizes that there have been instances of
misconduct by a few FBI employees, it also recognizes the importance of
human-source information in terrorism, criminal, and counterintelligence
investigations."

"No one disputes the proposition that destroying organized crime in the
United States was an important law enforcement objective," the report
stated, referring to the use of Bulger and other Irish gangsters to inform on
their rivals in the Italian Mafia. "However, the steps that were taken may
have been more injurious than the results obtained."

The decision by the U.S. Justice Department in the early 1980s to officially
allow informants to participate in serious crimes (while altogether not a new
practice) produced a bitter, murderous harvest as evidenced by the Whitey
Bugler and the Barboza episodes.

DUTY TO REPRESENT

Some attorneys, including prominent ones, will not represent a “cooperating

witness.” Perhaps an attorney can ethically refuse to represent a person who
is a cooperating witness with the government. But once an attorney accepts a
client through a paid fee or has a client imposed on him through court
appointment, he has an ethical duty to zealously represent that client even if
it means securing a “deal” for the client as a “cooperating witness.”

An attorney does not enjoy the professional luxury of having a moral

barometer to measure what kind of clients he/she will represent. Killers,
pedophiles, serial rapists, child molesting priests, and corrupt
cops/educators/politicians are all sordid, wretched, despicable human beings.
But they have one thing in common: a guaranteed Sixth Amendment right to
the effective representation of counsel even if that means securing a “deal”
for the client as a “cooperating witness.”

Attorneys who as a matter of professional or moral disdain do not represent

“cooperating witnesses” may as well join the “don’t snitch” campaign being
waged by the hip-hop culture. Such self-righteous attorneys and the “don’t
snitch” rap artists are synonymous – they want a society in which no one
“cooperates with the Man.”

Most professional informants and career “jailhouse snitches” are a rotten-to-

the-core breed. But they are essential to effective law enforcement. They
have become an integral component of the nation’s criminal justice system.
If an attorney who refuses to represent cooperating witnesses had a loved
one kidnapped or murdered, he/she would become immensely grateful to
any “cooperating witness” or “jailhouse snitch” who could solve the crime
for the police.

Some anti-death penalty attorneys provide their clients charged with a

capital offense with “forms” to give fellow jailhouse inmates to sign
attesting to the fact that they are not a “jailhouse snitch.” Most capital
defendants (many of whom are charged with some “sick” crimes) would be
“bitch-slapped” upside the head if he asked a hardcore convict or gang-
banger to sign some form saying he is not a “snitch.” It would be an insult.
The harsh truth is that most of these capital clients compromise their own
case because they can’t keep their mouth shut. They want to brag or boast
about doing the deed. The jailhouse snitch just listens and reports. Who is
the real bastard here: the bragging killer or the snitch?

U.S. Justice Department statistics reveal that roughly 90 percent of all

criminal defendants plead guilty – most involving a “plea bargain” of some
sort. The criminal justice system encourages defendants to “snitch” or
become “cooperating witnesses” against themselves. Judges believe this is
the first step in accepting responsibility for one’s criminal actions. Defense
attorneys, therefore, have a fundamental duty to explore the possibility of a
plea bargain – even if it means recommending that the client give up
information implicating others in order to secure the most favorable “deal.”
The ultimate decision to cooperate, either against himself or others,
ultimately rests with the defendant but the duty to advise cooperation rests
with the attorney.

If attorneys are allowed the professional luxury to say they will not represent
a cooperating witness, what about terrorists? Who will represent them? It
certainly cannot be reasoned by any rational standard of human intelligence
that a cooperating witness is more morally reprehensible than a terrorist who
blows up innocent people, including helpless children, in support of some
warped religious or political ideology.

And what if a terrorist is represented by a criminal defense attorney who

does not represent cooperating witnesses and the terrorist decides he wants
to “make a deal” to give up information to the prosecution about a future
attack in exchange for a “get out of jail free” pass, what should the attorney
do? Walk away, assuming the risk that the terrorist will not “deal” through
anyone else?

From a purely moral perspective, a cooperating criminal witness is a better

character than a criminal. A criminal whose code of ethics does not permit
him to “snitch” is an individual trying to “beat the rap” so that he can return
to criminal wrongdoing. How many of these criminals have “walked” based
on the skills of the defense attorney who does not represent cooperating
witnesses only to do more crime – murder, rape, pedophilia, whatever.

The question is this: who are you going to invite to dinner, the snitch or the
person who would kill the snitch. No one likes a “tattle-tale” or a “suck-up”
(Johnny bringing the apple to the teacher) but what is there to like about
Pablo Escobar or the tattooed, foul-mouthed con who knifes the tattle-tale on
the prison yard. Pick your garbage.

The fact of the matter is that an attorney really does not have a choice. The
United States Supreme Court imposed upon attorneys a fundamental duty to
effectively represent their clients throughout the criminal proceedings,
including sentencing. See: Strickland v. Washington, 466 U.S. 668, 687
(1984). See also: Maganana v. Hofbauer, 263 F.3d 542, 561 (2001)
[counsel’s failure to correctly advise defendant about sentencing exposure
was prejudicial because had defendant known his exposure, he would have
agreed to spend ten years in prison rather than risk the 20-year ultimately
imposed by jury].

An attorney has an ethical duty to advise a client to accept full responsibility

for his criminal actions, even if that means implicating others and providing
assistance to law enforcement. The U.S. Sentencing Guidelines, § 1b1.1(e),
offers a possible “offense level” reduction if the defendant accepts personal
responsibility for the offense. Id., § 3B1.1(a). This reduction does not apply
if a defendant tries to shield a co-defendant from criminal liability and
misleads law enforcement officials. See: United States v. Kiulin, 360 F.3d
456, 460 n. 1 (4th Cir. 2004).

A criminal defendant who cooperates with law enforcement, either against

himself or others, enhances his prospects of offense level reduction. See:
United States v. Banks, 252 F.3d 801-807-808 (6th Cir. 2001); United States
v. Water, 372 F.3d 1141, 1146 (9th Cir. 2004). A criminal defendant’s
attorney must advise the client that the acceptance of personal responsibility
and cooperation with law enforcement cannot be delayed; it must be prompt,
complete, and honest with the defendant bearing burden of affirmatively
demonstrating acceptance of responsibility. See: United States v. Franky-
Ortiz, 230 F.3d 405, 408-09 (1st Cir. 2000).

Further, the government may move for an additional one-level reduction

based on the defendant’s cooperation. See: Sentencing Guidelines, supra
note 1, § 3E1.1(b) Additionally, the government can move that the court
depart downward on a recommended sentence because of assistance the
defendant has provided to law enforcement. Id., § 5K1.1. See also: Wade v.
United States, 504 U.S. 181, 185 (1992); United States v. Hashimoto, 193
F.3d 840, 841 (5th Cir. 1991). Finally, the attorney must advise his client that
he must accept responsibility before an offense is discovered to be eligible
for a downward departure. Id., § 5K2.16. See also: United States v. Lovaas,
241 F.3d 990, 902-03 (7th Cir. 2001)[ § 5K2.16 departure unavailable to
defendant who believed his prior abuse of young boys would be discovered
in course of investigation].

An attorney representing a client who, at any point prior to or during the

trial, decides he wants to testify must advise that client to tell the complete
truth, even if that truth assists the prosecution against others being tried
jointly or awaiting trial separately. The attorney at this point in the criminal
proceedings cannot withdraw from the case. He could face an ethical
complaint before the state bar or find himself the subject of a legal
malpractice lawsuit if he did.

CONCLUSION

The criminal trial process today, with an abundance of ineffective assistance

of counsel jurisprudence and a litany of federal and state sentencing
guidelines that both demand and encourage a defendant’s acceptance of
personal responsibility and cooperation with law enforcement, does not offer
an attorney a lot of “wiggle room” when it comes to his/her personal
morality or sense of ethics about who and how to represent.

The criminal trial process is adversarial for one fundamental reason: to

determine the truth. This begins with an attorney advising his/her client to
tell the truth. If the truth implicates the client, and others, then the attorney
must work toward mitigating the prosecution’s evidence of guilt – by trying
to establish the prosecution did not prove its case beyond a reasonable
doubt; that the prosecution did not present sufficient evidence to warrant
conviction on the offense charged or warrants conviction on a lesser offense;
or that the defendant’s actions through acceptance of personal responsibility
and cooperation with law enforcement warrants a reduced sentence.

An attorney who takes cooperation with law enforcement off the defense
table under threat of withdrawal from the case violates a criminal
defendant’s Sixth Amendment guarantee to effective assistance of counsel.
Worst yet, the attorney is guilty of legal malpractice because a client’s
interests always comes before the attorney’s personal values system. An
attorney’s personal disdain for “snitches,” just like a personal dislike for
child molesters, does not factor into the duty to provide effective
representation.

SOURCES: The Boston Glode (Nov. 2003) and THE ANGOLITE (Nov.-
Dec. 1980), the official publication of the Louisiana State Penitentiary.