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THE INFORMANT

THE JUDAS FACTOR

It happened a long time ago.

Corrupt religious and community leaders learned that a young man wastraveling around the countryside inciting people with harsh criticism of theirleadership. People listened to this man. They began to question theseleaders. Feeling threatened by the new order this young man advocated, theleaders decided he must die but he had to be killed legally within theframework 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 wouldprecipitate a riot, so they conspired to get him away from his followers so hecould be arrested. They laid traps for him but he always managed to eludethem as though the hand of God was guiding him.

The leaders were near the end of their wits when one of the young mansclosest confidants offered to help. Some say he was motivated by 30 piecesof silver; others say it was anger at the young mans message of hope andforgiveness. Whatever the motive, the cooperating confidant led the young

man into a trap where he was taken into custody by the soldiers. The youngman was tortured, tried, convicted, and executed.

The confidants betrayal has never been forgotten, or forgiven. The traitorsname, always the subject of infamy, was Judas Iscariot one of JesusChrists 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 socialorder. A citizen is not only expected but has a fundamental duty to report tolaw enforcement authorities emergencies, crises, accidents, crimes, oranything that threatens social order.

But there is a significant difference between this social duty and the betrayalof Judas. Iscariot was a police informant. His actions were not motivated by

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duty to preserve the social good. He was motivated by personal interest. Hecoveted and betrayed the trust of another. He sold his services to lawenforcement 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 thecommon vernacular. Most police who work with them do not like them, butthese same police say informants are essential to effective law enforcement.They point to the war on drugs as an example, saying that informants liveand 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 fueltheir outrage against the cop killer.

Take for example the murder of New Orleans police officer GregoryNeupert near the Fisher Housing Project in 1980. The New Orleans policedepartment launched a swift, and brutal, search for the cop killer in thearea. The quickly developed information from reliable informants thatReginald Miles and James Billy, Jr. killed the officer. The police raidedBillys apartment, killing him in an alleged shootout. They next raided anapartment occupied by Miles and his girlfriend, Sherry Lynn Singleton, andkilled 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 governmentaland activists investigations, prompting the resignation of PoliceSuperintendent James Parsons. The two alleged police informants, JohnnieBrownlee and Robert Davis, came forward telling the local news media thatthey had been beaten by the police to provide information against Miles andBilly.

They kept on showing me Billys picture and making it clear that theywanted 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 havea scar, and they said they would kill me if I did not identify someone andthen let me know by showing me Billys picture over and over again thatthey wanted me to say it was him.

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It was during this era when police misconduct with informants wasbecoming increasingly more prevalent in the nations declared war oncrime that the United States Justice Department announced newguidelines which allowed FBI informants to commit serious crimes incertain paramount investigations. While the guidelines prohibitedinformants from participating in any crime without authorization orapproval of an appropriate government official, the guidelines grantedauthority to FBI supervisors to determine whether the conduct is necessaryto obtain information or evidence for paramount prosecution purposes.

Pointing out that informants were critically important in investigations oforganized crime, Ku Klux Klan, and other criminal elements, former FBIDirector Daniel Webster defended the guidelines, saying: I think the daysare 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 theAmerican culture. They are utilized in law enforcement, business, schools(from pre-grade to college), professional sports, entertainment industry, IRS,crime-stoppers, Americas Most Wanted, prisons, and even churches. In ahighly political, competitive, and fearful society, information is a prizedcommodity that translates into the accumulation of individual benefits and ageneral opportunity to influence the shape of events. For the criminalinformant, it means providing the direction and even the outcome of acriminal investigation and subsequent prosecution by the government.

Clearly, the demand for informants in todays information-driven society is agrowth industry as evidenced by the dont snitch campaign in the rapculture. The line is long, and getting longer, for those willing to offer theirservices as professional informants for personal gain, and it has become anatural component of criminal wrongdoing to become a cooperatingwitness. The Mafia has literally snitched itself out of business. Former NewOrleans District Attorney Harry Connick, Sr. worked for years as a public

defender and was left with the impression that most criminals wanted tocooperate with the cops.

They would often bring it up themselves, the deceased Connick saidnearly thirty years ago while district attorney. They would say Look,why dont you do this I can give information to the police, but I want someconsideration in this particular case. I was duty-bound to convey their

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suggestions to the Police Department. Of course, they knew they wouldntbe identified and that theres no problem with the person they were puttingthe rap on.

THE SAGA OF RICKY TERREBONE

In 1975 Ricky J. Terrebone was a 21-year-old heroin addict living inJefferson Parish, Louisiana. Two undercover agents of the Jefferson ParishPolice Department and one of their paid informants were engaged in casualconversation on September 18 that year. Their conversation was natural,casual as they talked about business of the streets. The conversation turnedto drugs.The informant knew Terrebone. The agents asked if Terrebone hadany. The informant said he did. They all went to Terrebones residence.They asked for drugs. Terrebone said he didnt 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 hissupplier. The agents and Terrebone returned to his residence. After a briefwait, the supplier drove up to Terrebones residence. The agents gaveTerrebone $175 for the drug purchase. Terrebone walked to the supplierscar, gave him the money, and returned to the house with 22 packets ofheroin. The agents gave Terrebone three packets and left with 19.

The informant was Lionel Parks. Earlier that night he had been atTerrebones house talking about scoring some heroin. Parks toldTerrebone he would pay for the score and get him high as well. Terrebonewas a married father of one child. He worked as a carpenter. He was not acriminal. 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 topfor his own use. Parks knew this.

Parks was on parole. He was doing drugs, stealing, and anything else it tookto survive. Several weeks before the Terrebeone deal Parks stabbed an

undercover agent while high on heroin. He made a deal with the police tobust others if they would not violate his parole or charge him with stabbingthe 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 Louisianas new tough anti-drug law.

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His case would run the gamut in both the state and federal courts challengingthe constitutionality of the states 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 justone of hundreds of defendants convicted under the Louisianas drug lawwhich was patterned after New Yorks Rockefellar law. Most were small-time street addicts set up by informants. Some died in prison, a fewmanaged to secure their release, but most remain in prison where they willalso die.

THE WHITEY BULGER FACTOR

The Boston GLOBE in 2003 reported about the findings of a two-year studyby the House Committee on Governmental Reform into the 40-year history

of the FBIs use of organized crime figures as informants in the NewEngland area, particularly the infamous South Boston underworld bossJames Whitey Bulger. The report found that, according to the GLOBE, FBIagents became corrupt, encouraged perjury in death penalty cases, letinnocent men languish and die in prison, and allowed people to be murdered,all in the name of protecting informants.

The congressional committee called the FBIs use of these informants,especially Bulger, one of the greatest failures in the history of federal lawenforcement.

Still the committee found that the use of informants by law enforcement isessential during an era when the United States is faced by threats frominternational terrorism, and a number of law enforcement tools are being

justifiably strengthened. But the committees report said that the results ofthe committee's investigation make clear that the FBI must improvemanagement of its informant programs to ensure that agents are notcorrupted 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 SecretDegenerates: The FBIs Use of Murderers as Informants. More disturbingwas the fact that the U.S. Justice Department did not cooperate with thecongressional investigation and actually tried to obstruct it.

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"Throughout the Committee's investigation, it encountered an institutionalreluctance to accept oversight," the report states. "The Committee hasconcluded that the Justice Department failed to take responsibilities to assistCongress as seriously as it should have."

The highly critical congressional report was one of many revelations at thetime about the FBIs use of organized crime figures as informants. One suchinformant was the violent and murderous underworld hitman, Joseph TheAnimal Barboza. The report cited a recorded conversation betweenBarboza and New England crime boss Raymond L.S. Patriarca during whichThe Animal said he planned to murder a rival by burning down hisapartment even though the targets mother might be inside. The FBI hadalready 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 theother two were released after serving more than 30 years in prison before afederal court investigation resulted in their release.

"The use of murderers as government informants created problems thatwere, and continue to be, extremely harmful to the administration of justice,"the report states.

FBI Director Robert Mueller embraced the reports call for reforms.

"When Director Mueller was brought on board, his intent was to change thedirection of the FBI and move it into the 21st century," spokesman EdwinCogswell said. "While the FBI recognizes that there have been instances ofmisconduct by a few FBI employees, it also recognizes the importance ofhuman-source information in terrorism, criminal, and counterintelligenceinvestigations."

"No one disputes the proposition that destroying organized crime in theUnited States was an important law enforcement objective," the report

stated, referring to the use of Bulger and other Irish gangsters to inform ontheir rivals in the Italian Mafia. "However, the steps that were taken mayhave been more injurious than the results obtained."

The decision by the U.S. Justice Department in the early 1980s to officiallyallow informants to participate in serious crimes (while altogether not a new

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practice) produced a bitter, murderous harvest as evidenced by the WhiteyBugler and the Barboza episodes.

DUTY TO REPRESENT

Some attorneys, including prominent ones, will not represent a cooperatingwitness. Perhaps an attorney can ethically refuse to represent a person whois a cooperating witness with the government. But once an attorney accepts aclient through a paid fee or has a client imposed on him through courtappointment, he has an ethical duty to zealously represent that client even ifit means securing a deal for the client as a cooperating witness.

An attorney does not enjoy the professional luxury of having a moralbarometer to measure what kind of clients he/she will represent. Killers,

pedophiles, serial rapists, child molesting priests, and corruptcops/educators/politicians are all sordid, wretched, despicable human beings.But they have one thing in common: a guaranteed Sixth Amendment right tothe effective representation of counsel even if that means securing a dealfor the client as a cooperating witness.

Attorneys who as a matter of professional or moral disdain do not representcooperating witnesses may as well join the dont snitch campaign beingwaged by the hip-hop culture. Such self-righteous attorneys and the dontsnitch rap artists are synonymous they want a society in which no onecooperates 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. Theyhave become an integral component of the nations criminal justice system.If an attorney who refuses to represent cooperating witnesses had a lovedone kidnapped or murdered, he/she would become immensely grateful toany cooperating witness or jailhouse snitch who could solve the crimefor the police.

Some anti-death penalty attorneys provide their clients charged with acapital offense with forms to give fellow jailhouse inmates to signattesting to the fact that they are not a jailhouse snitch. Most capitaldefendants (many of whom are charged with some sick crimes) would bebitch-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.

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The harsh truth is that most of these capital clients compromise their owncase because they cant keep their mouth shut. They want to brag or boastabout doing the deed. The jailhouse snitch just listens and reports. Who isthe real bastard here: the bragging killer or the snitch?

U.S. Justice Department statistics reveal that roughly 90 percent of allcriminal defendants plead guilty most involving a plea bargain of somesort. The criminal justice system encourages defendants to snitch or

become cooperating witnesses against themselves. Judges believe this isthe first step in accepting responsibility for ones criminal actions. Defenseattorneys, therefore, have a fundamental duty to explore the possibility of a

plea bargain even if it means recommending that the client give upinformation 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 restswith the attorney.

If attorneys are allowed the professional luxury to say they will not representa cooperating witness, what about terrorists? Who will represent them? Itcertainly cannot be reasoned by any rational standard of human intelligencethat a cooperating witness is more morally reprehensible than a terrorist who

blows up innocent people, including helpless children, in support of somewarped religious or political ideology.

And what if a terrorist is represented by a criminal defense attorney whodoes not represent cooperating witnesses and the terrorist decides he wantsto make a deal to give up information to the prosecution about a futureattack in exchange for a get out of jail free pass, what should the attorneydo? Walk away, assuming the risk that the terrorist will not deal throughanyone else?

From a purely moral perspective, a cooperating criminal witness is a bettercharacter 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 returnto criminal wrongdoing. How many of these criminals have walked basedon the skills of the defense attorney who does not represent cooperatingwitnesses only to do more crime murder, rape, pedophilia, whatever.

The question is this: who are you going to invite to dinner, the snitch or theperson who would kill the snitch. No one likes a tattle-tale or a suck-up

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(Johnny bringing the apple to the teacher) but what is there to like aboutPablo Escobar or the tattooed, foul-mouthed con who knifes the tattle-tale onthe prison yard. Pick your garbage.

The fact of the matter is that an attorney really does not have a choice. TheUnited States Supreme Court imposed upon attorneys a fundamental duty toeffectively 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)[counsels failure to correctly advise defendant about sentencing exposurewas prejudicial because had defendant known his exposure, he would haveagreed to spend ten years in prison rather than risk the 20-year ultimatelyimposed by jury].

An attorney has an ethical duty to advise a client to accept full responsibilityfor his criminal actions, even if that means implicating others and providingassistance to law enforcement. The U.S. Sentencing Guidelines, 1b1.1(e),offers a possible offense level reduction if the defendant accepts personalresponsibility for the offense. Id., 3B1.1(a). This reduction does not applyif a defendant tries to shield a co-defendant from criminal liability andmisleads law enforcement officials. See: United States v. Kiulin, 360 F.3d456, 460 n. 1 (4th Cir. 2004).

A criminal defendant who cooperates with law enforcement, either againsthimself or others, enhances his prospects of offense level reduction. See:United States v. Banks, 252 F.3d 801-807-808 (6th Cir. 2001); United Statesv. Water, 372 F.3d 1141, 1146 (9th Cir. 2004). A criminal defendantsattorney must advise the client that the acceptance of personal responsibilityand cooperation with law enforcement cannot be delayed; it must be prompt,complete, and honest with the defendant bearing burden of affirmativelydemonstrating 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 reductionbased on the defendants cooperation. See: Sentencing Guidelines, supranote 1, 3E1.1(b) Additionally, the government can move that the courtdepart downward on a recommended sentence because of assistance thedefendant has provided to law enforcement. Id., 5K1.1. See also: Wade v.United States, 504 U.S. 181, 185 (1992); United States v. Hashimoto, 193F.3d 840, 841 (5th Cir. 1991). Finally, the attorney must advise his client that

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he must accept responsibility before an offense is discovered to be eligiblefor 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 todefendant who believed his prior abuse of young boys would be discoveredin course of investigation].

An attorney representing a client who, at any point prior to or during thetrial, decides he wants to testify must advise that client to tell the completetruth, even if that truth assists the prosecution against others being tried

jointly or awaiting trial separately. The attorney at this point in the criminalproceedings cannot withdraw from the case. He could face an ethicalcomplaint before the state bar or find himself the subject of a legalmalpractice lawsuit if he did.

CONCLUSION

The criminal trial process today, with an abundance of ineffective assistanceof counsel jurisprudence and a litany of federal and state sentencingguidelines that both demand and encourage a defendants acceptance of

personal responsibility and cooperation with law enforcement, does not offeran attorney a lot of wiggle room when it comes to his/her personalmorality or sense of ethics about who and how to represent.

The criminal trial process is adversarial for one fundamental reason: todetermine the truth. This begins with an attorney advising his/her client totell the truth. If the truth implicates the client, and others, then the attorneymust work toward mitigating the prosecutions evidence of guilt by tryingto establish the prosecution did not prove its case beyond a reasonabledoubt; that the prosecution did not present sufficient evidence to warrantconviction on the offense charged or warrants conviction on a lesser offense;or that the defendants actions through acceptance of personal responsibilityand cooperation with law enforcement warrants a reduced sentence.

An attorney who takes cooperation with law enforcement off the defensetable under threat of withdrawal from the case violates a criminaldefendants Sixth Amendment guarantee to effective assistance of counsel.Worst yet, the attorney is guilty of legal malpractice because a clientsinterests always comes before the attorneys personal values system. Anattorneys personal disdain for snitches, just like a personal dislike for

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child molesters, does not factor into the duty to provide effectiverepresentation.

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