Informant lies to NYPD, innocents get searched, and the informant gets charged with perjury. See WABC TV news, which takes credit for this investigation, posted July 17: Informant arrested after misguided raids:
“Sometimes, however, you will get a situation where the police may act too quickly, where there’s no immediate urgency to go into an apartment, and, in fact, the police may have the time to verify the information that’s given to them by the informant,” explained Robert Silbering, a former special narcotics prosecutor in New York City.
Top brass at the NYPD have confirmed a full investigation. Regarding Cynthia and Jerry, they say, “Obviously they should not have had to undergo being detained….”
Specifically regarding Jerry, a prostate cancer survivor, being cuffed and thrown on his floor, they say, “We regret that it happened to him.”
Police are now going back evaluating this particular informant’s cases, 26 of them total. Fifteen ended positively, but 7 others now face review.
“Every piece of paper, everything that was done in those cases should be re-examined. It’s clear that this informant was making it up as he went along,” Spiegel said.
The informant is now facing 2 counts of perjury for the two cases featured in our story on Thursday. Police say their confidential informant lied. There is proof, and two residents in Pelham Bay suffered because of it.
Updated here tonight with the NYPD stating that the informant was seen hiding drugs on his own person and he had bargained down several cases of his own and was on the NYPD informant payroll.
The matter underscores three significant points about confidential informant hearsay:
First, the reason why the Supreme Court requires that the CI’s basis of knowledge be shown (Gates) to show that the CI’s information is reliable, to show that the informant just didn’t make it up. As this case shows, however, what good does Gates do to protect innocent people from a malicious informant or, worse yet, a malicious police officer who just makes up the informant? Not much.
Second, how does one who contends he or she is innocent get to the informant’s identity in a criminal case? Seldom does the citizen accused ever get through the Roviaro veil to get disclosure of the CI. If, however, the citizen has a claim the informant lied, not the usual criminal case, the informant’s identity presumably would be readily disclosable in a civil rights action against the police. The nature of that case would depend a lot on local law and whether the citizen could make a claim for failure to control the informant or having knowledge of the CI’s prior misdeeds which may have put the police on notice. See United States v. Toole, 2008 U.S. Dist. LEXIS 54085 (W.D. N.Y. January 11, 2008):
The disclosure of a confidential informant’s identity is within the sound discretion of the district court. DiBlasio v. Keane, 932 F.2d 1038, 1042 (2d Cir. 1991). The government generally is not required to disclose the identity of confidential informants. Roviaro v. United States, 353 U.S. 53, 59 (1957). In order to obtain such disclosure, the defendant must show that without it, he “will be deprived of a fair trial.” United States v. Fields, 113 F.3d 313, 324 (2d Cir.), cert. denied, 522 U.S. 976 (1997); United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988) (defendant entitled to identity of confidential informant only upon showing that it is essential or material to the defense), cert. denied, 489 U.S. 1089 (1989). A defendant’s mere suggestion that disclosure will be of assistance to the defense of the case is insufficient. United States v. Fields, 113 F.3d at 324. “[T]he district court must be satisfied, after balancing the competing interests of the government and the defense, that the defendant’s need for disclosure outweighs the government’s interest in shielding the informant’s identity.” Id. (citing Roviaro v. United States, 353 U.S. at 62). Such a need is established, according to the Second Circuit, “where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence.” United States v. Saa, 859 F.2d at 1073.
In the instant matter, defendants have failed to show how disclosure of the informants’ identities will be essential to their defense. See United States v. Flaharty, 295 F.3d 182, 202 (2d Cir. 2002) (“speculation that disclosure of the informant’s identity will be of assistance is not sufficient to meet the defendant’s burden”). Nor have any of the arguments advanced by defendants demonstrated the materiality of the informants’ identities to their defense.
Third, one thing that allegedly enhances the credibility of an informant in an appellate court’s eyes is the informant’s personal risk if the information proves false. Remember the case law references to the informant’s “admissions against penal interest” tending to show that the informant should be believed? Illinois v. Gates, 462 U.S. 213, 268 n.20 (1983):
The “veracity” prong is satisfied by a recitation in the affidavit that the informant previously supplied accurate information to the police, see McCray v. Illinois, 386 U.S. 300, 303-304 (1967), or by proof that the informant gave his information against his penal interest, see United States v. Harris, 403 U.S. 573, 583-584 (1971) (plurality opinion). The “basis of knowledge” prong is satisfied by a statement from the informant that he personally observed the criminal activity, or, if he came by the information indirectly, by a satisfactory explanation of why his sources were reliable, or, in the absence of a statement detailing the manner in which the information was gathered, by a description of the accused’s criminal activity in sufficient detail that the magistrate may infer that the informant is relying on something more substantial than casual rumor or an individual’s general reputation. Spinelli v. United States, 393 U.S., at 416.
This informant’s purported basis of knowledge was apparently seeing a drug deal that never happened. Seeing a drug deal is not against penal interest, unless the informant is the buyer of the drugs working outside the auspices of his police handlers. At any rate, can the NYPD not self-servingly use this prosecution to show that they are tough on lying informants? If so, how do they prove that informant’s generally know it? Have a “CI’s warning” akin to a Miranda warning that lying informants are prosecuted? That proves too much. Its mere existence would mean that the lack of further prosecution was caused by deterring informants. And how do they prove that informants were actually told other than the officers’ word?
