The argument in favor seems pretty straightforward. First, they come afterward, so it’s a bonus rather than an incentive to lie. Second, they are still required to tell the truth, so if it’s the truth, it’s harmless. Third, snitches are reluctant to be snitches, and without snitches, nobody would ever be convicted. And finally, if they told prosecutors about it, someone would feel compelled to tell the defense, and that would ruin everything. The point is to get the bad guys, and this is how it’s done.
While no one from the Durham Police has said any of this, it’s what I would expect them to say. The end justifies the means, and they believe their goal to be true and just when they pay snitches a bonus for conviction:
A long-standing financial bonus program for criminal informants operated by the Durham Police Department could violate defendants’ right to a fair trial and possibly taints their plea agreements.
For 10 years, DPD has offered extra money to undercover informants willing to testify in court and cooperate in drug cases. However, those incentives were offered without the knowledge of prosecutors or defendants. This new revelation could prompt the review of more than two-dozen closed cases. Many of the defendants involved in those cases were imprisoned or scheduled for deportation.
There is no “could” about it. It is a flagrant violation of Brady v. Maryland, no question whatsoever, and every rationalization for doing so fails. Miserably. It is absolutely, fundamentally wrong.
But the cops were a bit shrewder than most, keeping it their dirty little secret rather than risking some Pollyanna would spill the beans.
“[T]he D.A.’s office was not aware of any agreement to pay confidential informants at the completion of cases,” said Assistant District Attorney Roger Echols in an email last month to Ian Mance, a lawyer for the Southern Coalition for Social Justice. “We were also not aware of, if there were any, payments to confidential informants for bonuses. If we had that information or known it existed we would have provided it to the defendant in discovery.”
If this was an ongoing program for a period of years, it raises questions. Is it really possible that no one in the D.A.’s office knew about it? Secrets like this are incredibly hard to keep, especially when prosecutors are prepping their snitch and he asks over and over, “and I’ll get the bonus if he’s convicted, right?”
If that never happened in the ten years of the program, this should go in the secret hall of fame, as it’s the first and only time such a thing has ever happened.
Unsurprisingly, the police claim that there is no such policy. The post-conviction bonus is just something they like to do. You know, spontaneously. Because they are appreciative guys.
There is no written departmental policy on the bonuses, because every case is different, Peter said. Financial arrangements made during active cases are limited, and many bonuses are paid spontaneously following the completion of a case.
“There’s an art to it. Sometimes you pay [the informant] because he’s a standup guy. You tell your sarge, ‘I told him to make himself available, and he was there. I’d like to pay him two-hundred bucks because he kept his word, and there’s another house where he says he can make a buy from.’ That’s not unethical.”
Is it bad to be appreciative? Is that wrong? And the police deny that it’s for a conviction, rather than just for their willingness to be good citizens.
The police department denies that bonuses are triggered directly by convictions. Of the six forms including the term “conviction,” five were written by DPD officer Carl Husketh, who was investigating drug trafficking crimes at the time. According to Peter, Husketh mistakenly used the wrong term and will refrain from doing so in the future.
“To him [the term 'conviction'] meant ‘case disposed of,’” Peter said. “We’ve never paid for a conviction. I think that’s unethical.”
If you squint real hard, there is a great deal of sense to what the cops are doing. Snitches aren’t always the most reliable folks when it comes to showing up. This is particularly true of paid snitches, as opposed to cooperators working off a case. While the latter get paid in kind, the former may not find the money a sufficient incentive on any given day.
And likely, the cops aren’t exactly lying, as the value of a bonus isn’t just in one snitch’s testimony, but the word spread around the street of their largesse, which both brings in new snitches as well as provides the tacit belief that if the snitches please their paymasters, there will be a special surprise for them on the back end. What snitch doesn’t want mo’ money?
Since most cases end in pleas rather than trials, however, there is another layer of nuance to the scheme that could elude detection.
But if a federal case doesn’t go to trial, the issue is more nuanced, said Richard E. Myers II, a former federal prosecutor and current UNC-Chapel Hill law professor.
Myers said he does not see ethical problems with undisclosed bonuses when a case results in a plea deal. They are sometimes justified when a prosecutor doesn’t want to put an informant’s life at risk unnecessarily, he said.
Myers understands defense attorneys’ concerns. “The prosecutor is holding either ace or joker and you don’t know which,” he said. “But that’s how these things work.”
While Myers’ explanation is dubious and cynical, as if there is nothing disturbing about concealing purchased testimony from the defense, the fact remains that it’s one of the huge gaps in Brady, which neglected to fix a time for disclosure except to require that it be made available for the defense to use at trial. Many judges find five minutes before opening statement more than adequate.
So in the sense of gamesmanship, Myers is correct when he says, “but that’s how these things work.” The problem is that it is not how these things should work. As for whether it’s ethical to conceal that the prosecution’s star witness was paid for his testimony, that’s a matter of perspective. If one happily accepts self-serving justifications for deceit and concealment because of one’s zealous belief in his own righteousness, then it’s understandable that Myers would see it as ethical. Others will see it differently.
But it’s hard to think that anyone here believed it to be ethical, given that the police concealed it not only from the defense, but from the prosecution as well. If they believed this to be a legitimate deal, then why conceal it?
Because paying bonuses to snitches for convictions is fundamentally wrong, and there is no question about it. No spin, no rationalization, no excuse changes how the practice subverts the system. And if complying with the law means the cops will lose a few snitches or cases, so be it. That, professor, is how these things are supposed to work.
H/T Radley Balko