by Derek Gilna

Last year the Federal Judicial Center (FJC), part of the Court Administration and Case Management Committee of the Judicial Conference of the United States, published a study that found criminal defendants who cooperated with the government were often harmed or threatened with harm. However, a recent federal appellate decision raises the troubling possibility that informants may not get sentence reductions in exchange for their testimony if prosecutors fail to secure a conviction.

The 155-page FJC study, released in February 2016, goes to considerable lengths to catalogue incidents where informants faced retaliation, based on reports from various agencies on the judicial, prosecutorial and correctional side of the criminal justice system. Among the violent acts intended to intimidate informants and their families, the study cited the following examples:

• “The home he and his family resided in was shot up the day before he was scheduled to testify.”

• “[They] burned his house down.”

• “Name posted on Top Snitches Facebook page.”

• “Told family members to put his name on rats.com.”

• “Flyers posted in his neighborhood that he cooperated.”

The FJC study noted that “Among all types of harm or threat, respondents most often reported threats of physical harm to defendants/offenders or witnesses or to friends or family of defendants/offenders or witnesses.” Most of the reported incidents occurred while the informants were in custody.

While threats, shootings and arson are disincentives for informants to cooperate with prosecutors, an August 2016 decision by the Seventh Circuit Court of Appeals adds another dimension to the problems they face.

Richard Harrington was serving a 212-month sentence for money-laundering and drug trafficking when federal prosecutors in Illinois asked him to testify against his well-known Chicago defense attorney, Beau Brindley. They believed Brindley had solicited false testimony from witnesses at trial – a crime known as suborning perjury. But despite Harrington’s cooperation, Brindley was acquitted at a federal bench trial.

As promised in Harrington’s cooperation agreement, prosecutors petitioned for re-sentencing in his case in exchange for his testimony. Yet U.S. District Court Judge Amy St. Eve refused to grant the 25% reduction offered under Federal Rule of Criminal Procedure 35. Instead she granted Harrington a 14% sentence reduction, explaining that the difference, which amounted to two years in prison, was justified due to Brindley’s acquittal – effectively penalizing Harrington by requiring him to serve more time because prosecutors had failed to obtain a conviction.

On appeal, Judge Richard Posner, who wrote the Seventh Circuit’s decision, said the district court’s tactic was “odd” but didn’t call it illegal. Instead he left open the possibility that St. Eve might more fully explain her reasoning on remand, where she was ordered to conduct a new re-sentencing hearing. See: United States v. Harrington, 834 F.3d 733 (7th Cir. 2016).

The outcome in Harrington’s case poses a problem for other informants: If they know their testimony alone will not ensure a full sentence reduction, but only a conviction will do so, they have every incentive to exaggerate their testimony or even commit perjury to ensure a conviction. But a jury will know this, too – and thus be more likely to discount or disregard informant testimony.

It is disincentives to cooperation by informants that worry federal prosecutors and judges; that was the impetus for the FJC’s study, which examined the period between 2012 and 2015, when federal judges reported at least 571 incidents of “harms or threats” to informants. At least 31 cooperating defendants were murdered, in and out of prison, by people who obtained information about their plea deals from unsealed court documents or transcripts of court proceedings.

The ease with which court records can be accessed on the Internet is just part of the problem, according to Judge William Terrell Hodges, who chaired the FJC committee that released the study. In a June 2016 letter sent to all federal judges and court clerks, he claimed that “new inmates are routinely required by other inmates to produce dockets or case documents in order to prove whether or not they cooperated. If new inmates refuse to produce the documents, they are punished.”

The other side of this issue is that many federal criminal defendants claim they were convicted based upon exaggerated or perjured testimony by informants who were promised leniency in return for their cooperation – a practice that results in irreversible legal consequences that are rarely remedied by the court system. In fact, according to the Innocence Project, 15% of wrongful convictions that were overturned based on DNA evidence involved testimony from informants or others who had an incentive to provide incriminating statements.

With prosecutors quick to accept the benefits of testimony from informants but slow to ensure they are protected, once defendants who cooperate with the government are incarcerated they frequently end up in segregation or another form of special housing.

Although prisoners are often rewarded with shorter sentences for testifying against other prisoners or defendants, the reality is that they have to serve their prison sentences somewhere – which puts them at risk of retaliation and violence.

The FJC lamented the fact that “concerns of harm or threat affected the willingness of both defendant/offenders and witnesses to cooperate with the government” during the time period examined by the study. That is more than just an inconvenience in the federal court system, where the testimony of informants is often required to obtain convictions.

Federal officials have responded by suggesting new protocols for sealing sensitive documents in criminal cases, including whether defendants cooperated with prosecutors. Currently this is handled in various ways by individual judges. The proposed new rules would instead require federal judges to create a “sealed supplement” in criminal cases, containing “documents or transcripts that typically contain cooperation information.”

But this may not solve the problem. First, defense attorneys note that hiding key information about the government’s activities may not be constitutional. And even if the proposed rules pass constitutional muster, they would make an often opaque criminal justice system even more difficult to monitor for defendants, attorneys and watchdog organizations. Would trial transcripts, court orders and even appellate rulings that reference an informant’s cooperation with prosecutors be sealed from public view?

“A rule that automatically seals everything in all court records related to any defendant’s cooperation or noncooperation with law enforcement flips on its head the presumption of access the law requires,” said Katie Townsend, litigation director for the Reporters Committee for Freedom of the Press.

There is also a more practical – and pressing – concern.

“Maybe a lawyer would read a docket entry that says SEALED SUPPLEMENT, REQUIRED IN EVERY CASE and draw no inference, but the bullies who pick on others in federal prisons don’t see it that way,” noted David Beneman, Maine’s federal public defender. “They assume when it says sealed, this person is an informant.”

In other words, if there’s no way to prove a new prisoner isn’t an informant, the presumption would be that he is – putting even more defendants at risk of harm. The FJC will review the proposed new rules and most likely ask for public input before deciding whether to adopt them. 

Sources: www.fjc.gov, www.themarshallproject.org, www.innocenceproject.org

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