Beware of Winking and Nodding with Informants
- Multiple cases and courts recognize the incentives of informants to lie in return for testimony that helps the government.
- It’s important to try to get the information you need prior to trial, because it’s much easier to effectively use the information with a jury than to use it with a court in post-conviction appeal or habeas proceedings.
- Consider making more aggressive, creative pretrial requests for instructions and discovery that will help you in the pretrial and trial proceedings.
NOW THE BLOG:
On the continuing theme of Brady over the last several posts, we have a guest post from Verna Wefald this week. Verna’s a veteran habeas and appellate attorney and has the following thoughts to offer:
It has been over forty years since Giglio v. United States, 405 U.S. 150 (1972) held that prosecutors must disclose the deals for leniency they give to informants who testify against your client. But “[e]very prosecutor knows that competent defense attorneys will use – and appropriately so – the sweetness of the quid pro quo tendered to one defendant to testify against another as the basis of an argument to a jury that the witness’s testimony has been compromised or purchased, and is thus suspect.” Willhoite v. Vasquez, 921 F.2d 247, 251 (9th Cir. 1990) (Trott, J., concurring).
So to avoid the argument that an informant’s testimony was bought and paid for, prosecutors will frequently assert that “no promises” have been made. Prosecutors will sometimes admit they bought the informant a hamburger when he was debriefed and they certainly don’t mind telling the jury the government is providing for his safety, thereby signaling your client is dangerous in addition to whatever else he may be. But they don’t want the jury to think the informant is coming forward for any reason other than to see justice done. Of course, you know that’s not true, but how can you prove it when it matters most – during the trial?
It’s easy to see the informant – and the prosecutor – lied post-conviction. All you have to do is look at the official court file of the informant’s case (or cases) after your client is found guilty. There you will see the Rule 35 motions, the suspicious sealed proceedings, the sentencing hearings where your prosecutor just happened to drop by before the informant was given probation or time served. Prosecutors who are caught filing these Rule 35 motions on the sly simply file declarations stating all this benevolence was just done as an afterthought for safety’s sake.
It’s easy to cry foul on appeal or in a 2255 motion. But it’s not so easy to get the courts to do anything about it. A jury is far more likely to cast an informant’s testimony to the wind if they are told about deals than judges are to overturn your client’s conviction no matter how much the case stinks. Only ten percent of appeals are successful regardless of how good of a case you have, and that’s an outside figure. You can quote Justice Frankfurter all you want: “And there comes a point where this Court should not be ignorant as judges of what we know as men.” Watts v. Indiana, 338 U.S. 49, 52 (1949). In reality, judges tend to look the other way.
What follows are some suggestions for setting up the case at the trial level to at least let the prosecutor – and the judge – know that you know what’s going on every time the prosecutor says he made no promises to an informant. You may not be able to get away with much or any of this, but if you make a stink early and often, you never know what might happen. You will certainly be making a good record for an appeal.
1. Ask for a jury instruction that the informant can be presumed to be looking for benefits despite his denial and that this presumption exists even if there are no explicit promises. For cases supporting such a request, see Garcia v. County of Merced, 639 F.3d 1206, 1212 (9th Cir. 2011) (“Jailhouse informants can always be presumed to be looking for consideration in return for their information.” (Emphasis in original.)); Carriger v. Stewart, 132 F.3d 463 (9th Cir.1997) (informant recanted and then repudiated recantation; writ granted when prosecutor failed to disclose informant was an habitual liar); People v. Ruthford, 14 Cal. 3d 399, 403 (1975) (informant wrote letter to defendant after trial telling him prosecutor gave his wife a deal for testifying)
2. Instead of the standard cautionary instruction for benefits that might be given, ask that the jury be instructed that “no promises” actually means the informant will say whatever he thinks the prosecutor wants to hear. For cases supporting this request, see Sivak v. Hardison, 658 F.3d 898, 916 (9th Cir. 2011) (recognizing that “the more uncertain an agreement, the greater the incentive to make the testimony pleasing to the prosecutor” (quoting Bagley v. Lumpkin, 798 F.2d 1297, 1302 (9th Cir. 1986)); People v. Coyer, 142 Cal. App. 3d 839, 843 (1983) (“It is the witness’ subjective expectations” that are critical to impeachment, not the actual benefit bestowed); People v. Phillips, 41 Cal. 3d 29, 47-48 (1985) (failure to specify what benefits will be given prior to witness’ testimony not only deprives jury of information with which to judge credibility, but encourages witnesses to lie; witness “may be so influenced by his hopes and fears that he will promise to testify to anything desired by the prosecution” in order to get what he wants later on down the line).
3. Ask for all tacit understandings between government and informant (or government and all informants anytime anywhere, i.e. what is their policy). For cases supporting this request, see Carrera v. Brown, CIV F-90-478-AWI (E.D. Cal. 2004), in which a defense attorney testified in a habeas deposition that it was not necessary to ask county prosecutors for benefits for informant clients because it was understood that they would get something and in which the district court vacated a special circumstances finding for “winking and nodding” to get around Brady/Giglio (Order of October 4, 2004, at pp. 78, 102) and Sivak v. Hardison, supra, in which the Ninth Circuit stated:
“[T]he deal or promise need not be express; failure to disclose an agreement or guarantee of leniency ‘indicated without making a bald promise’ may also violate Brady.” Hovey [v. Ayers], 458 F.3d [892,] 917 [(9th Cir. 2006)] (quoting United States v. Butler, 567 F.2d 885, 888 n.4 (9th Cir. 1978)). We have even found a Brady violation where the evidence “implied a tacit agreement was reached between [a witness] and the government . . . in exchange for his cooperation.” United States v. Shaffer, 789 F.2d 682, 689 (9th Cir. 1986).
Sivak, 658 F.3d at 910.
4. Ask for all communication between the government and the informant’s lawyer. For cases supporting this request, see Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) (en banc) (habeas petition granted when prosecutor contrived with informant’s attorney to keep deal secret from informant in the belief that he would not be committing perjury by saying he had no deal); Campbell v. Reed, 594 F.2d 4 (4th Cir. 1979) (court condemned prosecutor who made a secret side deal with informant’s attorney to avoid having to tell the jury); Willhoite v. Vasquez, 921 F.2d 247 (9th Cir. 1990) (winking and nodding with informant through his lawyer to get around Giglio is unconstitutional).
5. Ask for a pretrial hearing to examine the informant, his lawyer, the agent, and the prosecutor to find out exactly who said what to whom, when, and where. The informant’s lawyer will claim attorney client privilege, but point out there is a crime-fraud exception to attorney client privilege. Nix v. Whiteside, 475 U.S. 157, 174 (1986) (no attorney client privilege if client informs lawyer he intends to “engage in future criminal conduct,” e.g., lie on the witness stand about what he expects for his testimony).
6. When the prosecutor objects during your cross-examination of the informant (as you start to get too close to getting him to admit he expects or hopes for leniency – prosecutors often signal to the informant to shut up with something like “asked and answered”) and the judge sustains the objection, you should object that your client’s Sixth Amendment confrontation and fair trial rights are being violated. For cases supporting this, see California v. Green, 399 U.S. 149, 158 (1970) (“Cross-examination” is the “greatest legal engine ever invented for the discovery of the truth.”); Davis v. Alaska, 415 U.S. 308, 316-317 (1974) (”The exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.”); United States v. Shoneberg, 396 F.3d 1036, 1042 (9th Cir. 2005) (recognizing that the defense must be given ample opportunity to cross-examine a witness and explore any motive to falsely testify in order to assist the government).
7. And always remember, it ain’t over til it’s over. Ask for a continuing order requiring the prosecutor to notify the defense of all benefits (money, reduced sentences, favors to others) bestowed on the informant after trial (no matter how many years later) or risk being held in contempt. See Randolph v. State of California, 380 F.3d 1133, 1144-1145 (9th Cir. 2004) (denial of state habeas corpus petition vacated and remanded for further factfinding on whether a jailhouse informant was acting on behalf of the prosecution; decision to remand influenced by the fact that although prosecutors said jailhouse informant was not explicitly promised any leniency for his testimony, he did in fact receive lenient treatment after testifying; informant’s expectations, prosecution’s awareness of informant’s expectations, and informant’s ultimate benefits critical to analysis); Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005) (when prosecutor did not explicitly promise leniency but made court appearances on defendant’s behalf resulting in dismissed counts, disclosure was nevertheless required), rev’d on other grounds sub nom. Ayers v. Belmontes, 549 U.S. 7 (2006).