Questions surface about Durham police informant payments

Mar. 12, 2014 @ 07:46 PM

A group that’s led recent criticism of the Durham Police Department now claims police have illegally paid “conviction bonuses” to informants who’ve helped them jail people for drug offenses.

The practice was not disclosed to prosecutors or defense attorneys, and may have contributed to a number of defendants taking plea deals, leaders of the FADE Coalition alleged to reporters on Wednesday.

The group – its acronym stands for Fostering Alternatives to Drug Enforcement – wants the department to stop all use of “conviction or contingency” payments and discipline officers who used them in the past.

“The issue at hand today goes to the heart of criminal prosecution and defense, the right to a fair trial,” said David Hall, a defense attorney and coalition member. “That right may have been violated.”

Wednesday’s news conference got a swift denial from police of “any unethical or illegal activity,” albeit one coupled to the statement that the department will have city attorneys “review our practices” and consult Acting District Attorney Leon Stanback’s office.

Stanback, meanwhile, said he “would not approve of any payment to informants being made on the basis of a conviction.”

“We’re looking into it,” he added.

The issue surfaced after a public-records request to police from coalition leaders turned up copies of payment vouchers for informants in 10 drug cases.

In each, a detective asked to pay an informant $300. Seven of the vouchers listed “conviction” as the reason for payment. Five gave “testimony” as a standalone or related reason. And one said the payment was for “case completion.”

Police say it’s customary to pay “CIs” – short for confidential informants – when a case is over.

“This is done to give the CI some incentive to be available for court in case their testimony is needed during trial,” said Capt. Todd Rose, commander of the department’s Special Operations Division, in a memo to his boss. “Regardless of the outcome of the court case, the CI still gets paid the bonus.”

Constitutional doctrine has long accepted paying informants, the headline case on the issue being a 1966 U.S. Supreme Court ruling that went against former Teamsters union boss Jimmy Hoffa.

And the 4th U.S. Circuit Court of Appeals – whose rulings are binding in North Carolina – in 2000 and 2002 rejected arguments from defense lawyers that paying informers is the equivalent of a bribe.

The 2002 ruling was in a Virginia drug case where the defense alleged that the FBI had agreed to pay an informant a $100,000 bonus contingent on testimony against and the conviction of the members of a motorcycle gang.

But 4th Circuit said there’s nothing wrong with that, given proper safeguards at trial.

Those include disclosure of the payment arrangement before a trial, the chance for the defense to cross-examine the informant and a caution from judge to jury to give the informant’s testimony “heightened scrutiny,” Judge Paul Niemeyer said for his colleagues.

Moreover, “there can be no indication that the government is sponsoring or suborning perjury,” a contingency deal has to require truthful testimony and prosecutors should have “independent means” of corroborating the informant’s statements, he said.

Most of the cases FADE turned up involved defendants who accepted a plea bargain before actually going to trial, which raised a second issue: The Supreme Court says prosecutors involved in a plea bargain don’t have to give the defense “impeachment evidence” about the credibility of their witnesses.

That runs counter to the usual rule that prosecutors have to disclose “exculpatory” evidence to the defense during a trial.

“When a defendant pleads guilty, he or she, of course, forgoes not only a fair trial but also other accompanying constitutional guarantees,” Justice Stephen Breyer said in a 2002 opinion joined by seven of his eight colleagues.

It slapped down an attempt by the 9th U.S. Circuit Court of Appeals – which handles cases from California and other West Coast states – to say the disclosure rule that applies to trials also should cover witness-impeachment in plea talks.

But Hall on Wednesday argued that full information is just as important to defendants in plea talks as it is before they take a case to a jury.

“Without full disclosure, the defense may enter into a plea or give up that right to cross-examine the witness,” he said. “The payment arrangement should be part of the discovery provided to defense when they’re advising clients about their case.”

He was alluding to North Carolina’s “open file discovery” law, which requires prosecutors, on orders from a judge, to give the defense the “complete file” of a police investigation and a list of prospective trial witnesses.

The state is stricter on the point than federal judges, as graphically illustrated by the 2007 disbarment of former District Attorney Mike Nifong over his handling of evidence disclosures in the Duke lacrosse case.

But FADE stopped short Wednesday of alleging that prosecutors had broken the law in any of the cases it found. It instead called for “further investigation” of their handling.

Hall and other participants in the news conference said Assistant District Attorney Roger Echols had told the coalition the DA’s office “was not aware of any agreement to pay confidential informants at the completion of cases.”

In the litigation spawned by the Duke lacrosse case, city attorneys have noted that under both federal and state law, it’s up to prosecutors to make any required disclosures to the defense.