Informers Under Fire

Even law-and-order advocates sometimes find their sensibilities offended by that most unstable adjunct of police work, the informer. Trained from childhood to disparage tattletales, Americans have hardly a decent word for those who give information to authorities. The glossary runs to such pejorative nouns as fink, stoolie, rat, canary, squealer. In some police argot they are snitches. Yet no major police force can operate without some of the shady types who will go where cops seldom can, perhaps to a meeting of conspirators, or do what cops won't, for example, shoot heroin before a cautious pusher will make a sale. Informers have long been found in every area of life, but since the McCarthy era there has not been so much public concern about them in the U.S. as there is now.

The chief cause has been the recent spate of celebrated cases in which police agents played a role--from the trials of the Chicago Seven and the Seattle Eight to virtually all of those involving Black Panthers. Currently, civil libertarians are questioning the propriety of the prosecution's use of Boyd Douglas, the FBI informant central to the just-concluded Harrisburg Seven trial (see THE NATION). Still more questions have been raised by the ongoing trial of 28 people accused of destroying draft files in Camden, N.J. Four weeks ago, Robert Hardy, a paid FBI informer, suddenly announced that Government money had been supplied for gas, trucks, tools and other items necessary to the raid. He contends that he acted in effect as an agent provocateur, rekindling interest in the project when the others seemed to have dropped it.

Variations. The word informer actually covers a variety of types. They range from the fellow who turns in a friend for tax fraud (and collects up to 10% of whatever the Federal Government recovers) to a full-fledged undercover Government agent like Herbert Philbrick (/ Led Three Lives). As Philbrick's case suggests, the usually unsavory reputation of informers often vanishes if the cause seems especially just --or at least popular. The FBI'S hired hand who fingered the Ku Klux Klan killers of Viola Liuzzo generated considerably less controversy than Boyd Douglas.

For many, informing is a onetime thing. On the other hand, the champion informant in the San Francisco area is responsible for an estimated 2,000 arrests a year, mostly in narcotics cases; a retired burglar, he now earns $700 a month from the police. Not surprisingly, money is a common motive for informers. In 1775, somewhat the worse for his fabled years of womanizing, Casanova replenished his purse by hiring out to the Venetian Inquisitors; he provided them with political tidbits as well as a list of the major works of pornography and blasphemy to be found in the city's private libraries. The fictional Irish betrayer Gypo Nolan, in the movie The Informer, turned in his best friend to the British for -L- 20. A whorehouse madam collected $5,000 for leading the FBI to John Dillinger.

But by far the most frequent impetus is the save-your-own-skin syndrome. In return for having the charge against him dropped or reduced, a suspect can often be induced to testify against his confederates. An already convicted man like Joe Valachi may get special privileges and protection. Less often, an informer is a well-intentioned citizen driven by personal zeal, as was former Communist Whittaker Chambers in his accusations against Alger Hiss and others. Now, Sociologist David Bordua points out, "there is a whole new type developing in the area of anti-pollution law. If you like it, it's civic participation. If not, it's police informants."

Danger. Like it or not, most experts regard the typical informer as an indispensable evil in much police work. "A very scurvy bunch," observes Stanford Law Professor John Kaplan, a former prosecutor, but "there are certain kinds of crimes in which you have to have them--consensual crimes like narcotics." The reason: in such cases there are rarely complaints from the victims. Last year informants on the FBI payroll accounted for 14,233 arrests and the recovery of $51,646,289 in money and merchandise. For all their importance in gathering information, though, they present considerable technical and tactical problems in the courtroom.

Their anonymity is frequently vital.

Thus courts allow a tip from a reliable informant to be used to obtain a search warrant--without revealing the informant's identity. But if failure to disclose his name would unfairly hamper the defendant on trial, then the informer may no longer remain anonymous. Two years ago, Denver Police Lieut. Duane Bordon found that the danger to informers is no Hollywood myth. He was forced to give an informer's name at a trial, and a few months later the man was found beaten and shot to death.

Pop's Pot. The use of informers raises a variety of constitutional problems. Under the Miranda decision, police cannot question an arrested suspect without warning him of his right to silence and counsel, but an informer is free to pump an unwary suspect for all he is worth. That was how Jimmy Hoffa was convicted of jury tampering and the Supreme Court upheld the conviction. Moreover, the informer can legally be fitted out with a tape recorder or transmitter. "The theory is that you've trusted the wrong person," explains Professor Kaplan.

The informant planted in a suspect's cell after his arrest does suggest Miranda problems still unresolved by the Supreme Court. On the other hand, a regular cellmate, not working for the police, may testify about anything he is told. This is because the private citizen is generally permitted a range of freedom denied to an agent of the Government, whose investigative power the Bill of Rights sought to limit.

But when does a citizen informer become a Government agent? The question was sharply if unusually presented in Sacramento, Calif., recently when a twelve-year-old boy discovered that his father had some pot and turned him in to the police (TIME, Sept. 20). The resulting conviction might have been upheld if the youth had simply grabbed Dad's stash on his own; instead, he had returned to his house on police instructions to get the evidence. Thus he became a police agent, and as such, he conducted a warrantless search in violation of the Fourth Amendment.

Judicial Control. The issue is particularly critical to a special rule of the game. A policeman or police agent is forbidden to entrap--that is, he may not put the idea of the crime into a person's head and induce him to act on it. A mere citizen, however, can suggest a criminal idea and later, if he decides to become an informer, give evidence against his coconspirators. Clearly, the moment when he came under police control is crucial.

All of these difficulties make prosecutors loath to use informants as witnesses. Moreover, they are a generally unpredictable lot, and juries frequently discount their evidence on the theory that they may have embroidered their testimony to gain police favor. But the result--the fact that only a minority of informers ever appear in court--helps to reduce the amount of control that judges have over their use. Many who worry about informers and police power would like to see more, not less, of such judicial control. Aryeh Neier, executive director of the American Civil Liberties Union, thinks that the use of police informants should be permitted only after a judge issues a warrant. Others, like Illinois Attorney Joseph R. Lundy writing in The Nation, focus their objection narrowly on political investigations. They would require a warrant authorizing the use of informers when First Amendment free speech rights are involved.

Basically, the issue is so emotion laden and complex because it leads to a direct conflict between a citizen's right to privacy and society's right to protect itself against crime. That tension has existed since the framing of the Constitution, and resolving it is one of the burdens of a free society. Meanwhile, informers are not going to disappear and neither can the search for safeguards against their improper use.

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