Though confidential informants are often utilized by law enforcement agencies to produce more arrests, the lack of transparency around the process has long had experts concerned.
In most cases, confidential informants are suspects that have been arrested or convicted for crimes of their own, but cut a deal with police and prosecutors to reduce their sentence in exchange for information that leads to a more valuable arrest.
One high-profile incident played out in 2019.
Houston police obtained a no-knock warrant for a home based on what they claimed was the testimony of a registered and reliable confidential informant, who they said had purchased heroin at the house. The raid ended with two people dead — Navy veteran Dennis Tuttle and his wife, Rhogena Nicholas — and four officers wounded by gunfire. No heroin was found in the home.
Prosecutors later alleged that the lead officer who applied for the raid routinely used false information and attributed it to informants to secure search warrants and that he had done so in this case.
“Criminal law is highly tolerant of the secrecy and the confidentiality, and therefore the lack of transparency and accountability that goes with that in the use of informants,” said Harvard law professor and criminal justice expert Alexandra Natapoff.
In some ways, Natapoff said, Texas has set an example on the issue.
Because of a series of wrongful convictions in the small Panhandle town of Tulia at the turn of the millennium, the legislature passed a law in 2001 that required corroboration of informant testimony in order to secure a conviction.
But more recent attempts to enact further reforms have faced political hurdles.
During last year’s regular legislative session, House Rep. Senfronia Thompson, a Houston Democrat, submitted HB 834 to expand the 2001 law further, requiring corroboration of undercover officer testimony before a conviction. Proponents argued the current loophole can still lead to wrongful arrests.
State Rep. Matt Krause, a Fort Worth Republican, also introduced House Bill 2631, which would have required a reliability hearing for jailhouse informants when they give information on serious felony crimes, like capital murder.
“It was the first time I’ve seen that idea really get traction,” said Scott Henson, the executive director of Just Liberty, a Texas-based criminal justice reform organization.
Both bills passed in the House with bipartisan support, but languished in the Senate.
“(Law enforcement agencies) don’t want that oversight,” Henson said. “They don’t want anyone looking into their business before (obtaining) the search warrant.”
Despite the challenges, Natapoff said she remains hopeful those kinds of reforms will eventually become enshrined into law as the secretive process behind confidential informants comes under greater scrutiny.
“Snitching will never recover from the realization that it is the single largest cause of wrongful capital conviction in this country,” Natapoff said. “Time and time again, we have seen the costs, we have seen the dysfunction, and I think that in state after state, we are seeing the result of that skepticism.”
WATCH KSAT 12 on Feb. 1 at 9 p.m.
Hear more from these experts, as well as local law enforcement leaders, about how to fix the problems associated with confidential informants in “‘A Necessary Evil’: The Cost of Confidential Informants,” a KSAT 12 Defenders special investigation that airs on KSAT 12 on Tuesday, February 1 at 9 p.m.
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