07/08/2013 04:57 pm ET Updated Sep 07, 2013

The Informer Game -- Examples That Raise Hard Questions

No prosecution office could survive without witnesses, informers, and the quid pro quo arrangements that enable law enforcement to access crucial information. Typically, informers who have been caught with a hand in the proverbial cookie jar -- who fear legal consequences -- agree to offer information in exchange for leniency from law enforcement. Witnesses often have skin in the game as well, and they express a willingness or outright desire to testify for the prosecution in exchange for some tangible benefit.

It's the informer game pure and simple: you scratch my back, I'll reciprocate. There's no other realistic way to bring wrongdoers to justice. Although court-ordered eavesdropping and other sophisticated surveillance techniques are available to law enforcement, the information required to implement these techniques also depend on informers who seek leniency or even "absolution," as it were, coming forward.

This post is not about the oddball stereotype of an informant -- the common '90s-era television caricature who miraculously claimed to have witnessed the Nicole Brown Simpson/Ron Goldman murders, Michael Jackson's alleged child abuse, and who, if asked, would likely have also been willing to say he was a witness to the Kennedy assassinations. These fame seekers are sufficiently transparent that no police or prosecutor takes them seriously, and accordingly, they never get before a jury. Nor do we deal here with the basic "snitch" problem, in which offers of leniency by police result in a profusion of jailhouse confessions that defy credulity. Neither is this about the sporadic, but still too frequent, false accounts by government informants that cause innocents to languish too long in jails before they are exonerated due to the uncovering of the false accusations that lead to incarceration.

No, here we deal with informer scenarios that raise more difficult questions. Specifically, we address the caution required of prosecutors who interact with informers given that informers come to the table with their own agendas.

Famed Mafioso James "Whitey" Bulger, a registered FBI informant for 19 years, is now on trial in Boston, Mass., for 19 murders. He basically claimed pre-trial (but not at trial) that the late federal prosecutor, Jeremiah O'Sullivan, promised him prospective immunity for his crimes "up to and including murder" in exchange for information. In other words, he has claimed that he had a license to kill. While the judge in the case has decided that she alone -- not the jury -- will decide the validity of that defense at trial, the mere fact that a criminal defendant of Bulger's status might try to advance such a defense is startling -- at least to the lay world.

However, although it may seem astonishing to those not conversant with the criminal justice system, there is some truth to the idea that prosecutors seek informants with a level of "street cred" that enables them to liaise with, and inform on, the criminal community. Informers are typically practicing criminals, and immunity is usually granted with regard to criminal acts already committed. The FBI has historically used high-ranking Mafioso as informers. In truth, agents who "handle" such informers pride themselves on gaining their cooperation.

Notwithstanding the government's allegedly questionable practices in the handling of Bulger while he was an informant, it is inconceivable that Bulger was specifically told that he could commit murder with impunity. Still and all, we are left to wonder precisely what he was, in fact, told. Those enmeshed in the criminal justice world would not be surprised to find that there was some ambiguity about how strictly Bulger would be held accountable for his wrongful conduct -- especially if his informing proved productive.

The fact that instances of poor informant management are not so rare makes Bulger's accusations somewhat more concerning. In 2012, involving a completely different case and scenario, an admittedly corrupt member of the New York Legislature ("the Legislator"), who was, herself, tied to a number of criminal episodes, apparently persuaded the federal prosecutors prosecuting her case (or was persuaded by them) to wire her home. There, she attempted to engage nine elected New York officials in criminal conversation. During these conversations, the officials were subjected to what amounted to an interrogation without the benefit of knowing precisely to whom they were talking, or who was listening.

For the moment at least, we don't know how closely the law enforcement handlers were supervising the Legislator's "investigation." Did they tell her whom to invite to her "recording studio," or how to steer the conversations? Or, instead, did the crooked Legislator, trying to gain favor with the feds, largely choose her targets and the topics of conversation?

While the government did later say, in connection with her sentencing, that several of the recording sessions were indeed somewhat productive, it does not seem that the Legislator was able to actually "make cases" against anyone. Not to mention that this high-quality informer, according to the prosecutors, gave "false, implausible, and inconsistent" answers when questioned by the FBI about her own criminal conduct -- resulting in the government not providing a request for leniency to the sentencing judge in exchange for her cooperation. Again, this is the individual who, frankly, was essentially let loose on a number of public officials whose identities were curiously made public even though they engaged in ostensibly no provable wrongdoing -- to their great prejudice in the public eye.

Nonetheless, while the Legislator did not actually hit the home run that would have warranted her receiving probation rather than jail time, she did gain a reduced sentence -- undoubtedly, in part, occasioned by her "cooperation" efforts. Put simply, she attempted to ensnare a bunch of public officials after persuading prosecutors that taping them might potentially yield productive results.

Though such an effort might seem like an effective and ultimately harmless strategy, when law enforcement officials lead informers to believe that they face no real consequences for cavalier acts undertaken with the aim of achieving leniency, such informers can come to believe that they may conduct themselves with a level of impunity. Alternatively, criminals tempted by offers of leniency risk misleading law enforcers to believe that the informants will be more productive than is realistic -- thus seducing officers into endorsing more risk-taking than is warranted.

Prosecutors generally, including those in the cases described above whom I have come to know in these or other matters, are wholly professional and responsible men and woman committed to their work. They have the challenging duty of ferreting out crime, and oftentimes, that task requires both imaginativeness and a willingness to step outside the box. That said, in dealing with proactive informers, law enforcement often, and necessarily, interacts with the dregs of society who are ostensibly willing to join "Team USA" for self-interested, non-altruistic reasons. The only way to ensure that that these informers do not abuse the system is to keep them on a very tight leash -- ever mindful that their goal, and their probity may be a totally different than that of their handlers.