Thursday, May 13, 2004
The Subcontracting Informant
One of the underappreciated effects of criminalizing consensual adult activity is that you have to rely on innovative police methods to enforce your prohibition. Sure, you can try stings and reverse stings and dog sniffs and pretext stops, but there's always room, even a place of honor, for informants. Reward them generously enough -- perhaps through reduced jail time, or perhaps through direct monetary payments or a share of the forfeited assets -- and you can have as healthy a supply of informants as you could possibly want.
Mr. Guillermo Francisco Jordan-Pollito has earned some $350,000 in the last ten years by informing for the DEA (and another $50,000 for informing for the FBI and other law enforcement agencies). He's been involved in some 80 cases! That is quite a bit for one person, but you see, Mr. Jordan-Pollito actually heads an organization of informers. He hires others to arrange his drug buys for him.
This is all well and good, of course, an efficient procedure for uncovering drug offenders. The fly in this otherwise pleasant ointment, alas, is that the use of the subcontractors hasn't always been mentioned in the subsequent legal proceedings. What difference does it make, the Vice Squad reader might ask, given that the illegal drug transactions took place in any case? Well, one technicality, alas, is that the law still provides for entrapment defenses -- what if the subcontractors worked really, really hard, to try to set up the sale? Mightn't that be a case of entrapment?
Read all about it in this story (registration required) from the Los Angeles Times. (Thanks to MAP for the pointer.) Here's a somewhat lengthy excerpt:
Ronald O. Kaye, a former federal public defender now in private practice, uncovered Jordan-Pollito's use of "sub-informants" last year after combing through telephone records turned over to him by federal prosecutors in a methamphetamine-trafficking case.
The prosecution contended that the sub-informant in Kaye's case had done nothing more than introduce Jordan-Pollito to the three defendants. But Kaye was able to show that the sub-informant, Jose Agapito Gomez, made 29 telephone calls to the defendants during a one-week period leading up to their arrests. The defense attorney also documented 68 calls between Jordan-Pollito and Gomez during the same period.
After hearing arguments from both sides, U.S. District Judge Florence-Marie Cooper ordered the government to disclose the names and file numbers of all cases in which Jordan-Pollito or Gomez had been employed and how much they had been paid.
When the prosecution refused to do so, Cooper tossed out the indictment and ordered the defendants freed.
"The government's representations regarding the use of confidential informants in this case have repeatedly proven to be unreliable," the judge stated in a strongly worded opinion. Cooper said that either the government did not know about the sub-informant's existence, which she called "highly unlikely," or the government deliberately lied to the defense.
If the government did not know, she went on, then its ability to monitor the activities of its undercover informants has been seriously compromised. And if the government did know and withheld the information from the defense, "that is an even greater evil," the judge wrote.
Cooper said it appeared at first that an entrapment defense was not feasible, because there were so few contacts between Jordan-Pollito and the defendants, and those tape-recorded encounters showed no pressure being applied by the DEA informant.
But the series of phone calls by the sub-informant to the defendants, which were not tape-recorded, supports "an inference that pressure was being brought to bear by the sub-informant, which could have been used to support an entrapment defense."
"A law enforcement agency must not be allowed to shield itself from accountability by hiring someone outside of law enforcement who is free to violate citizens' rights," she said.