Attorney General Kathleen Kane (AP Photo)
Determining when a case is strong enough to prosecute and when a confidential informant might be too compromised to take the witness stand are decisions typically made behind closed doors. However, in the wake of state Attorney General Kathleen Kane’s decision to shutter a public corruption investigation, these nuts-and-bolts choices have gained a high profile.
Lawyers are now debating whether close scrutiny into decision-making and deal-cutting that typically take place behind the scenes will affect the jury pool or the prosecution of corruption cases in general in Pennsylvania.
Attorneys who spoke with the Law Weekly agreed that information about the deals cut with informants to drop charges or grant complete immunity and questions about informants’ credibility have historically been fair game for defense attorneys. But the public scrutiny into these deals could weaken the trust in the informants even further, according to defense attorney David Zellis, who formerly was first assistant to the Bucks County district attorney.
“Jurors now are being exposed to something they may never have seen before and it may cause them to pause and hesitate and think: the people who go for that kind of a deal could say anything,” Zellis said. “That may put more pressure on the government not to make deals, or to really corroborate everything a cooperating informant says.”
In March, the Philadelphia Inquirer reported that Kane shut down a corruption investigation that reportedly caught four members of Philadelphia’s delegation in the state House of Representatives accepting multiple payments with totals ranging from $1,500 to $7,650. A fifth elected official, a former Traffic Court judge, allegedly accepted a bracelet as a gift from the informant, Tyron Ali, the newspaper reported. The actions were reportedly caught on video and audio tape. Ali faced some 2,000 charges in connection with his operation of a child care center and alleged mishandling of funds meant for low-income children and adults.
Kane shut down the investigation shortly after she took office. Since the sting was reported, Kane has claimed that in addition to mismanagement of the case, the cooperation agreement dropping the charges fatally tainted Ali’s credibility and jeopardized the use of the tapes.
Attorney Matthew Mangino, a former district attorney for Lawrence County, said that while the shuttered sting operation has made front-page news, any impact on juries might be short-lived.
“This might be in the short term something that becomes kind of vogue in terms of defense arguments, but I don’t think it’s going to have a lasting impact,” said Mangino, who writes a regular column for the Law Weekly. “I don’t think it’s going to have an impact on a significant number of cases where confidential informants are involved. It’ll be limited in the number of cases where it could be a valid argument.”
According to Mangino, the biggest concern with having these typically closed-door decisions aired in public is that it might make public questioning of prosecutorial discretion fair game.
“Are they all going to be subject to a Monday morning quarterback?” Mangino said. “If every single prosecutorial discretionary decision is going to be scrutinized in a public way, things are going to grind to a halt. We’ve invested this authority in prosecutors, and if you don’t like it, you can change the prosecutors. That’s what the system provides.”
Recent reports about the shuttered sting have also raised questions about when deals are overly favorable and when prosecutors should decide to drop charges against an informant, as prematurely dropping charges could lead an informant to stop cooperating, or the prosecutors to lose control of the informant altogether.
“If you’re going to give consideration to someone cooperating, you’ve got to wait to see how important and corroborative they are in the case [before the deal is made],” Mangino said. “If you get a case where all the charges are dropped before trial, you can say there’s a quid pro quo.”
Mangino said that, in most cases, the charges remain pending until after the prosecution, but this public debate might serve as a reminder about the importance of keeping the charges pending against the informants until after trial.
White-collar defense attorney Ellen C. Brotman of Montgomery McCracken Walker & Rhoads said that sometimes difficulty can arise during investigations involving confidential informants because prosecutors do not always directly control informants.
“One of the biggest problems we have is when agents deal with confidential informants and not prosecutors. What agents are saying to the confidential informants and the confidential informants to the agents is not something usually written down or discoverable or verifiable,” Brotman said. “There’s a real danger with lack of transparency going on between them. I think it’s very important for prosecutors to be scrupulously careful with their arrangements with confidential informants.”
Former prosecutor Kevin E. Raphael, of Pietragallo Gordon Alfano Bosick & Raspanti, said that unless the public debate leads the state General Assembly to pass laws about the use of criminal informants, he does not foresee much of a change in their use.
“In every case where a cooperating witness gets a deal or immunity, there’s always a challenge about that person’s credibility and about whether the deal influenced testimony, or accused someone who hasn’t committed a crime to buy their way out,” Raphael said. “When balancing out the priorities of giving deals to cooperating witnesses versus the need to investigate and prosecute some of this more concealed corruption, then it makes sense that there’s always going to be the use of these witnesses.”
Echoing the sentiments of several attorneys who spoke with the Law Weekly, criminal defense attorney William C. Costopoulos said the strength of the case depends on the hard evidence.
“Confidential informants are used all the time by law enforcement and as frequently as not they are corrupt sources. Corrupt in the sense that they have baggage, that they may have criminal charges pending, that they may have cut a deal for themselves to become informants,” Costopoulos said. “If the tapes are a smoking gun, then the credibility of the corrupt source becomes moot. If the tapes require corroborative testimony from the informant, then his credibility or lack thereof becomes the dispositive issue.”
Several attorneys the Law Weekly spoke with also agreed that having a public debate about the innner workings of the justice system will ultimately be beneficial.
“It forces us to think about major issues at the fore of the criminal justice system,” Raphael said. “How we as a society balance different policy interest is important to an informed democratic citizenry.”
According to Zellis, the debate puts scrutiny on the most difficult cases.
“The way our system of justice is set up, we want to have informant cases highly scrutinized by the prosecutors before they bring the charges, and if they’re brought, we want them scrutinized by the defendants and then the jurors so that we don’t fall into this trap where one person’s word is enough to put someone away for the rest of their life or for a significant amount of time,” Zellis said.
“I think it’s a really healthy thing for our system and our society to be talking about confidential informants and when they do and when they don’t work in an investigation, and when they’re so tainted you have to walk away,” Brotman said. “I’d like to think people are thinking about the criminal justice system and how it works or doesn’t work. Our society is greatly affected by the rate we incarcerate people. We should be talking about our criminal justice system.”