GOOD COP, BAD COP: Protecting Criminal Informants

Cops are unpredictable. On a frigid winter day, I had the pleasure of having lunch with two very amiable police officers at an all-American diner to discuss the case of one my detained clients who faced deportation from the U.S. Both were very supportive of his plight.

Normally defense attorneys do not have much positive interaction with law enforcement officers. In my twenty-year career I've never had a cop as a witness in a case and, as my lunch companions admitted, they'd never once testified for the defense during their even lengthier careers. But this time, these police officers were up to the task, and I did not need a subpoena to convince them. They were genuinely motivated by a deep sense of commitment to the ideals of their profession--that of saving people from harm. They were going to help me by testifying on behalf of a noncitizen criminal informant who was in removal proceedings and risked deportation to his native country, where he'd likely get killed for cooperating with these men in the arrest and prosecution of some of his compatriots for murder and drug dealing. So there I was preparing two cops as witnesses over a meal of BLT sandwiches and fries.

The paradox in all of this, of course, is that, over the years, countless clients who've had frequent and unfortunate contact with law enforcement have shared with me their tales about dirty cops who set people up, rough them up, or lie on the witness stand. Added to this is my personal bias with how the police are charged with enforcing certain laws that I consider unfair, such as those that penalize the simple possession of marijuana, when their attention could be directed towards more serious societal problems. I was also clearly baffled by the fact that any law enforcement types would be sympathetic to my client since he had a relatively lengthy criminal history. I found it almost comical that I could not convince the officers, who were extremely sensitive to my client's fate, that other clients of mine with similar rap sheets deserved equal consideration. While I easily argued to them that it was unjust for the federal Government to try to deport a mentally ill Vietnamese refugee who had been convicted of only two petty larcenies his life, they did not agree that someone who'd only once sold a vial of crack should be spared from deportation. Or at least they had a good time kidding me about this because when I brought up the latter scenario, they immediately looked at one another and said "deport 'em," and then laughed heartily at my expense.

Moreover, it even struck me as humorous that neither of the officers considered my client a violent man, even though he'd been convicted of a couple of assaults. When I confronted the two cops about these offenses, they shrugged their shoulders indifferently and said that the injury in question was a minor knife cut on someone's hand that did not even require medical attention; but since they'd had a victim and a weapon, they were required to make an arrest. It goes without saying that the immigration judge who heard this testimony on the witness stand was even more stunned than I by the explanation. The judge stared straight at the cop, raised his voice, and said, "you think he's not violent?" "No," answered the officer without emotion. Honestly, the response pleased me, especially at that moment, because I think that the seriousness of a client's crime is sometimes overblown by judges in proportion to the prospect of his deportation and its severe consequences. When one must regularly consider the spectrum of possibilities, with cold-blooded murder at one end and simple possession of a drug for one's own use at the other, it is easier perhaps to put such things into perspective.

In a striking contrast to the men with whom I shared a lunch, I recently came across a couple of news reports, one from National Public Radio (NPR) and the second from the Associated Press (AP). Both stories portray a different type of law enforcer, one that is quite dissimilar from my own two police witnesses: the one who treats noncitizen informants as mere "commodities" to be used as necessary and then thrown away despite any potential risk to their lives. See, http://www.npr.org/templates/story/story.php?storyId=122357350 and http://www.google.com/hostednews/ap/article/ALeqM5hGqZSpgYyTCZProzX5ulr7vYoTSQD9DRO6V80 The articles confirm that there exists a special non-immigrant, or temporary, visa for those who assist local, state or federal agencies with criminal investigations and prosecutions. These "S" visas must be obtained by a government entity on behalf of an informant who has or will assist in law enforcement activity, and only 200 such visas are available annually. One report cited in the NPR piece divulges that the visas are underutilized. However, the lack of use has clearly more to do with the reluctance, or downright refusal, of the authorities to apply for them than the need for them on the part of criminal informants.

Interestingly, in both of the articles, the local cops, like those with whom I'd had lunch, are relatively sympathetic to the foreign-born informants and believe that they should be immunized from deportation. "I thought I should do right by them," said one police officer quoted in the AP story about Argentinean siblings who served as informants to Immigration and Customs Enforcement agents in Saugerties, NY. The federal agents, in contrast to local police, seemed to completely lack empathy for the informants, and the report underscores how the feds even reneged on past assurances to protect the Argentineans and sponsor them for an S visa. This echoed the situation I faced with my "good" cops, who had sought assistance with my client's case from federal agents, only to have their efforts quite unexpectedly rebuked. The same officer quoted by the AP, though he had never before dealt with ICE, best summarized the reaction, "I assumed it was just another law enforcement agency and the rules would be the same." I myself have certainly learned that law enforcement agencies do not necessarily share the same objectives.

If an "S" visa is not sought for a criminal informant, then the only possible relief from the threat of removal is under immigration laws which protect those who fear persecution or torture if returned to their native country. These provisions are critical to informants since, in most cases, they have betrayed their fellow countrymen or women, and if returned to their homeland, they will not only face severe retribution for collaborating with the police, but also, because of corruption and collusion between cops and criminals in some societies, will not be protected from the harm.

Unfortunately, under immigration law it is very difficult to make a case for protecting criminal informants from deportation to where their lives may be at risk. There are a couple of major hurdles. First, most informants are criminals themselves. It is obvious that a successful informant working for the police is not going to be someone without a criminal record. Such a spotless person could never effectively infiltrate a gang, a drug operation or any other criminal enterprise. Criminals are very apprehensive about whom to trust. However, the law holds that if one has certain criminal convictions, she or he is ineligible for asylum and may only resort to other protective provisions under immigration law. These have higher burdens of proof, and are thus much more difficult to obtain.

Secondly, in a short-sighted, but precedential legal decision, Attorney General Ashcroft ruled in 2001 that criminal informants were not eligible for any special protection from removal when they feared death upon return to their native countries. The A.G.'s decision leaves the clear impression that the life of one who has been involved in crime is of a lesser value, and warrants no protection from harm even if she or he cooperated with law enforcement. This is a troubling precedent. Only one federal court, the 8th Circuit Court of Appeals, has so far challenged the Attorney General's reasoning by affording a criminal informant the right to make a claim for protection in the United States. In that case, the criminal informant had worked closely with U.S. authorities against powerful Mexican drug dealers. He was also able to prove that the Mexican police were so closely aligned with the drug cartels such that he would not receive any protection from the legal authorities in his native country. This scenario is not so uncommon.

I recognize that it may be difficult for some to appreciate the plight of a person who has violated the law; but when a deal is made, it should be respected. Tit for tat as they say. You rub my back and I'll rub yours. If a person puts his well-being on the line to help law enforcement, he or she deserves help in return, especially when one's well-being is a stake on account of their cozy relationship with the police. While cop shows would have us believe that solving crimes is a black and white endeavor-- the good are always good, and the bad always bad-- the real world indicates that the colors are much more blurred and muddy. As summarized in the NPR piece above, if we don't help those who have been informants in the past, how are we going to recruit other people to find drug traffickers and other serious criminals? Or perhaps it's simply about basic human decency.

I might finally add that the good cops paid for my lunch.