Only after a 23-year-old was shot to death after Tallahassee police sent her out alone to buy a gun and $13,000 of drugs did Florida start regulating how and whom police use as confidential informants. In Texas, it took a series of botched investigations — including those by two informants who ground up drywall to look like meth and then planted it on suspects — to create requirements that information from informants be corroborated before a conviction is reached. It almost always takes a disaster before states create laws regulating confidential informants.
During the past 15 years, a handful of states have created tougher rules on how to use criminals to catch criminals. Colorado, however, remains in the majority of states without laws and statewide guidelines for how police recruit and manage people cooperating in exchange for cash or deals.
Police and prosecutors in Colorado say each department needs the independence to use informants as the investigation and jurisdiction see fit. But defense attorneys and experts say the state is not without its own debacles — and failing to create harsher policies is only asking for things to get worse.
“Innocent people can get convicted based on the lies of a confidential informant,” said Mark Silverstein, legal director of the American Civil Liberties Union of Colorado. “When the judicial system doesn’t have the tools to fully explore and catch the prevarications of a confidential informant, then what they call the truth-seeking function of the criminal justice system suffers.”
The ACLU of Colorado has filed a federal lawsuit
in Denver on behalf of two women wrongfully arrested by Trinidad police based on uncorroborated information from informants. Detectives investigated and arrested 40 people in the southern Colorado town after two informants allegedly bought drugs from them.
None of the cases resulted in convictions on drug charges.
Attorneys later revealed that two of the people arrested were in jail on the dates the informant claimed to have bought drugs from them, according to the complaint. Lab tests revealed that some of the substances police claimed to be heroin were actually a mixture of cough syrup and marijuana. The case is an example of how the unchecked use of informants undermines justice, Silverstein said.
Until recently, the use of informants in all states was an unregulated law enforcement practice, despite being widely acknowledged as risky, said Alexandra Natapoff, a professor at Loyola Law School in Los Angeles.
“We gave police and prosecutors almost complete discretion of who to select, how to reward, how to use and what kind of crimes to tolerate and how much information to keep about the whole transaction,” said Natapoff, who researches informant policies across the country. “In the last 10 years, we’ve seen a new and promising interest from the judiciary, legislation, public advocates and the media in this very important but shadowy realm of public policy.”
California now has a law placing restrictions on how juveniles are used as informants. A law in Florida has helped protect informants’ rights, and Illinois requires hearings to help establish the reliability of jailhouse snitches.
Texas was one of the first states to create statewide practices for confidential informants.
In 2001, 49 convictions were overturned in Dallas after investigators discovered that confidential informants — one of whom was paid $200,000 — provided false information and planted fake drugs on people to have them arrested. Two years later, 38 additional convictions were dropped after authorities learned that an undercover narcotics officer had lied.
Now, Texas requires corroboration of information from confidential informants and jailhouse snitches in order to reach a conviction.
“Only the devil knows what goes on in hell, but at the same time, you wouldn’t expect to just take the devil at his word,” said Scott Henson, a former employee of the ACLU of Texas who helped get the legislation passed. Henson now writes a blog about criminal justice issues in Texas.
Hindsight can be painful in the world of confidential informants. Requiring stronger corroboration has helped improve how law enforcement utilizes informants in investigations and how prosecutors approach cases, Henson said.
But Denver police and prosecutors say corroboration, a requirement, is already a standard practice. Creating statewide protocols for informants could hinder investigations, said Denver District Attorney Mitch Morrissey.
“This idea that one size fits all for criminal-investigation procedures and that it should be legislated, I really think, is not wise,” Morrissey said. “An informant in Denver may be completely different than an informant in La Junta.”
Prosecutions are seldom based on an informant’s word alone, Morrissey said.
Detectives will work to corroborate information from informants through various approaches, including setting up multiple controlled buys, verifying information independently of informants or using undercover officers in investigations, said Cmdr. Mark Fleecs, who oversees the Denver Police Department’s Investigative Support Division.
“I would prefer that we have the ability to make those determinations,” Fleecs said.
Conviction not ensured
But those practices don’t always ensure a conviction.
Gerry Ohr was charged in March 2006 with one count each of solicitation to commit first-degree murder and conspiracy to commit first-degree murder after an informant told Denver police he was trying to hire a hit man to kill his ex-wife’s boyfriend. But the case, based largely on the informant’s testimony, fell apart at trial.
“You feel like you’re guilty until proven innocent,” said Ohr, a farmer on Colorado’s Eastern Plains.
Ohr said he had hired Mario Rueda as a private investigator to gather information about his ex-wife and her boyfriend. Ohr had split from his wife three years earlier in a volatile divorce, and there was a long history of troubling interactions between them.
Denver police records indicate Rueda was registered as an informant at least as early as 2004.
About a year after Ohr hired him, Rueda went to Denver police and told them Ohr was trying to hire someone to kidnap the couple so he could kill them, according to police documents.
Rueda arranged for a meeting with Ohr at a Denver Burger King in December 2005. Ohr said he expected to discuss what Rueda had learned, and was surprised that he came with another man. He did not know that the man was an undercover police officer.
Inside the restaurant, the third man told Ohr it would cost $25,000 to kidnap and kill the pair, Ohr said.
“So I sit there and listen to what they are saying and it’s just totally off-the-wall stuff,” said Ohr, adding that he told the men he was not looking to hire a hit man.
Ohr accused the man of being a cop and left the meeting, he said.
According to the undercover officer’s account of the 90-minute meeting, Ohr asked what he would charge to kill the couple. When the officer gave his price, Ohr allegedly asked whether he could pay half then and half later.
A few days later, Ohr arranged a meeting at the Burger King with Rueda. Ohr said he gave Rueda a $1,000 check to install a security system at his house near Lindon. Minutes later, police ordered him to the ground and arrested him. According to police documents, the informant told detectives the money was to help Ohr kidnap, torture and kill the boyfriend.
During trial, Rueda’s believability began to disintegrate. He was the only one present when Ohr allegedly talked about torturing the couple. Recordings police had made of the conversation between Ohr, Rueda and the undercover officer were missing key interactions.
Prosecutors who worked on the case said Rueda’s credibility largely affected the verdict, said Lynn Kimbrough, spokeswoman for the Denver district attorney’s office. The jury found Rueda unbelievable, she said.
The jury acquitted Ohr in August 2007. The Denver Post was unable to reach Rueda.
Better guidance
Implementing standardized protocols won’t stop some informants from lying. Better guidance, however, will help create consistent practice and accountability when cases go awry, said Jon Shane, an associate professor at the John Jay College of Criminal Justice.
“It is something that is going to standardize the process and keep police officers, the community and confidential informants much safer,” said Shane, who retired as a captain after 16 years of service with the Newark Police Department in New Jersey.
Law enforcement agencies in Colorado are not required to have written policies outlining how they recruit, manage and reward informants. Most metro agencies, including Denver, have written policies, but they vary widely.
Trinidad did not have any written protocols when detectives enlisted the two informants, according to the ACLU’s lawsuit.
“When you have a weak or absent policy, you don’t give the police officers any direction,” Shane said. “When you’re left without direction, inevitably, you revert to discretion, and what you believe is appropriate is different from what someone else believes is appropriate.”
Shane’s current research, set to be published soon, examines how often department policies — including those of agencies from campus police to regional departments — match up to best practices. A review of 165 department policies, including eight from Colorado, found that 86 percent required criminal background checks of informants.
Only 57 percent of the policies provided a definition of a confidential informant, and 16 percent required corroboration of information provided by informants.
Without rules to violate, it’s hard to hold informants and their handlers accountable.
“It’s virtually impossible because you have nothing to stand on,” Shane said.
But in order to establish best practices of informants anywhere, more transparency is needed, Natapoff said.
“We are only just beginning to try to keep track of our informant cases. When do they go bad? When do they produce good results? When do informants commit crimes? When do they get hurt?” Natapoff said. “Only when the government finally decides to disclose that information to the public will we fully understand this important public policy.”
Jordan Steffen: 303-954-1794, jsteffen@denverpost.com or twitter.com/jsteffendp
