Friday, July 15, 2011

The Use and Abuse of Confidential Informants By Law Enforcement in the State of New Jersey

One of law enforcements dirty kept secrets which very rarely see the day of light is the use of confidential informants.  In every type of criminal case in both the state and federal levels a defendant can obtain a very substantial sentencing reduction, including a straight probationary sentence, for substantial assistance or cooperation to law enforcement.[1]  It is without dispute that the potential fear of criminal prosecution, reduced sentence, monetary incentives, or other inducements may motivate a criminal suspect, who turns into a confidential informant, in providing information which is false or not totally inaccurate.

An example of the most flagrant abuse of confidential informants is typified by the Bulger fiasco.  After 16 years on the lame, Irish Boston mob boss and serial murderer James “Whitey” Bulger was finally captured at the age of 81.  What is shocking about Mr. Bulger was that while committing dozens of murders he was an informant for the Federal Bureau of Investigation and because of his informant status was able to commit crimes with impunity.

Bulger was allowed to flee Boston when he was warned by his long time handler FBI special agent John Connolly, Jr., who warned Bulger that Bulger was indicted for murder.

Because of his actions agent Connolly was convicted of racketeering in May of 2002 and sent to prison.

Bulger fed the FBI information on his rival the New England Mob and in return Bulger was permitted to run his illegal activities including murder without any interference from the FBI or other law enforcement agencies.

Although nothing similar has surfaced here in New Jersey as horrendous as the Bulger-FBI connection, many criminal defense attorneys have questioned in court the cozy relationships that many confidential informants or (CI) have with law enforcement.

Law Enforcement affidavits for search warrants are filled with hearsay statements to support law enforcements requests for judicial warrants to search homes, tape phones and engage in other types of judicial order investigation techniques.  Often it is impossible to test the veracity of these hearsay statements or to determine if the CI even is real. 

As the law stands now in New Jersey there are no official set of guidelines or rules to guide or control the use of misuse of confidential informants in criminal investigations in this state.

In New Jersey the problem has become so troubling that in June of 2011 the American Civil Liberties Union of New Jersey published a study on the practice of using CI’s in New Jersey.[2]  The study found that New Jersey does not have a set policy in the use of CI’s and that every county prosecutor office in this state has their own policies. 

In New Jersey there is no uniform statewide policy in the use of CI’s.  Only the New Jersey State Police have a statewide database on their informants but it appears that they do not share that data base with any other law enforcement agency in this state. 

It is without doubt that some law enforcement officers in this state overlook the criminal conduct of CIs under their supervision and control.  Further, many of these CIs in the attempt to “work-off” their offenses for sentencing purposes will engage in entrapment of people who would not have engaged in the crime, but for the inducements and promises made by the CIs to the unsuspected victims.  The CIs know they will not get arrested for crimes which they devise, plan and participate in, and have nothing to lose and will stop at nothing to snare others.

Many CIs are forced by law enforcement officers to participate as informants with threats of additional criminal charges, the threat of spreading rumors in the community or gang that the suspect is a “snitch”, removal and placing of their children in foster care, confiscation of property and loss of job, by notifying the arrestee of his or her arrest.

Currently the Office of the Attorney General requires that all CI agreements be in writing in all narcotics cases, and applicable state law requires that if the CI participated in the alleged crime that he or she can be forced to testify through a motion to disclose the identity of the CI.[3]  This information is published in the New Jersey Prosecutor’s Manual published by the Division of Criminal Justice on January 2, 2001.

Accordingly, a number of glaring misuses of confidential informants in this state that must be rectified and investigated in every criminal case.

1.              Statewide mandatory guidelines in the use of CIs.
2.              Whether the search warrants were circumvented and abused by the use of CIs.
3.              Veracity and actual existences of a CI in the investigation of an alleged crime.
4.              Whether the CI engaged in or promoted any crime.
5.              Full dossier of every CI, which includes, but not limited to, documentation and disclosure. when ordered by the court, of all information on the particular CI, including investigations in which he has been involved, and information disclosed, and whether that information was reliable and verified.
6.              That any and all misuse, or violation of the guidelines, require that the CI be prohibited in further participation in the program, and that any criminal investigations that he was involved in which lead to the arrest of a suspect be dismissed by the prosecutor’s office and disclosed to defense counsel. 
7.              That in every criminal case the assistant prosecutor must notify defense counsel of the use of a CI in a particular case because often that information is never disclosed to defense counsel.

In summary the use and abuse of confidential informants must be rectified and that in every case the criminal defense attorney must pursue that inquiry with proper investigation and the appropriate pre-trial motions.

Law Office of Vincent J. Sanzone, Jr.
Dated: July 15, 2011

Use of criminal informants in New Jersey criminal practice, entrapment and confidential informants, nj criminal attorney, nj criminal trial attorneys, CIs in new jersey law enforcement.

[1] The Federal Sentencing Reform Act of 1984, 5K1.1; New Jersey Brimage Guidelines, 1998, 2004.
[3]  State v. Forez, 261 N.J. Super. 12, 22025 (App. Div. 1992), State v. Surles, (Slip Opinion, NJ. App. Div. 2009)

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