A long-standing financial bonus program for criminal informants operated by the Durham Police Department could violate defendants' right to a fair trial and possibly taints their plea agreements.
For 10 years, DPD has offered extra money to undercover informants willing to testify in court and cooperate in drug cases. However, those incentives were offered without the knowledge of prosecutors or defendants. This new revelation could prompt the review of more than two-dozen closed cases. Many of the defendants involved in those cases were imprisoned or scheduled for deportation.
The bonuses were discovered through public records requests made by the Southern Coalition for Social Justice, a Durham-based civil rights nonprofit.
Police payouts to informants are commonly disclosed. But several Durham attorneys say they were unaware of pre-arranged bonuses.
"[T]he D.A.'s office was not aware of any agreement to pay confidential informants at the completion of cases," said Assistant District Attorney Roger Echols in an email last month to Ian Mance, a lawyer for the Southern Coalition for Social Justice. "We were also not aware of, if there were any, payments to confidential informants for bonuses. If we had that information or known it existed we would have provided it to the defendant in discovery."
The Supreme Court case Brady v. Maryland, entitles defendants to all evidence the government plans to enter against them during the discovery, or pre-trial phase, of a case. This includes evidence showing state witnesses have a financial stake in their cooperation.
"Clearly this is a Brady violation," said Donald H. Beskind, a Duke University law professor and defense attorney.
Jurors can perceive testimony of criminal informants as unreliable, if it is known that the informants receive incentives. If a defendant knows that a witness for the prosecution was promised bonus money to testify, he or she could negotiate a more favorable plea deal or be persuaded to go to trial.
"It makes a credible witness look less credible," Beskind said. "This should be concerning to everyone, including the public. There are fundamental guarantees we give to criminal defendants."
Assistant Chief of Police Jon Peter, who oversees investigations, acknowledged to the INDY that undisclosed bonuses are paid to informants willing to take the witness stand. Peter confirmed that the payouts are made upon the completion of cases, but denied any breach of ethics.
"If we thought an informant was saying something just for money, we'd never accept that," said Peter, noting that an informant's testimony often supplements more damning evidence.
Among the six cases Peter reviewed that were cited by the Southern Coalition, there was already incriminating video evidence of drug trafficking in several, if not all of them, he said. Each resulted in a plea deal.
There is no written departmental policy on the bonuses, because every case is different, Peter said. Financial arrangements made during active cases are limited, and many bonuses are paid spontaneously following the completion of a case.
"There's an art to it. Sometimes you pay [the informant] because he's a standup guy. You tell your sarge, 'I told him to make himself available, and he was there. I'd like to pay him two-hundred bucks because he kept his word, and there's another house where he says he can make a buy from.' That's not unethical."
But local attorneys are skeptical. "I would never have guessed that the police are paying additional, undisclosed payments to informants who agree to testify," said defense lawyer Daniel Meier. "Law enforcement's failure to disclose information is a felony. Any claim they didn't know it was improper or illegal—that's scary in-and-of itself. It makes you wonder what else is out there that we just don't know about."
In response to its public records request, the Southern Coalition obtained hundreds of forms labeled "Request and Expenditure Fund Reports" dating from 2007 to the present. In 36 of those reports, which the Southern Coalition shared with the INDY, the requesting officer cites bonus money as the reason for the request.
Among those requests, six were linked specifically to "convictions," and one was pegged to a "case-completion."
Examples include "Bonus for 3 convictions," "Bonus for conviction/testimony" and "Bonus 15 oz cocaine/conviction." In addition, 10 requests were tagged to bonuses for "testimony." The remaining 19 requests simply included the word "bonus," or were linked to arrests or information.
The bonuses ranged from $25 to $700, with the bulk of the payouts amounting to $300—more than three times the typical fee paid to an undercover informant for a drug buy. The payments totaled $8,569.83. The names of the defendants were redacted in the majority of the forms.
Assistant District Attorney Echols, who is running for D.A. this year, declined to comment beyond his email to the Southern Coalition.
The Coalition takes particular issue with the six documents that include the word "conviction." Mance, of the Southern Coalition, plans to distribute a letter on Wednesday to Mayor Bill Bell, Durham City Council members and Durham Police Chief Jose Lopez, questioning the bonus protocol. Mance provided a draft of the letter to the INDY.
"[The expenditure fund reports] suggested DPD has repeatedly paid secret 'conviction bonuses' to informants whose testimony or promise of testimony helped obtain a criminal conviction," the letter states.
The police department denies that bonuses are triggered directly by convictions. Of the six forms including the term "conviction," five were written by DPD officer Carl Husketh, who was investigating drug trafficking crimes at the time. According to Peter, Husketh mistakenly used the wrong term and will refrain from doing so in the future.
"To him [the term 'conviction'] meant 'case disposed of,'" Peter said. "We've never paid for a conviction. I think that's unethical."
Peter said he is open to discussing the disclosure of bonus practices with prosecutors. "I'm definitely willing to listen to the D.A.s to see if there is a remedy ... It might be that we don't promise to pay anything."
But Peter worries that paying informants during discovery, rather than at the completion of cases, would allow an informant to skip out on a trial. "If I paid you a bonus before going to court, I probably won't see you again. You'll say, 'I already got your money, sucker.' "
In a 2002 opinion issued by the 4th Circuit Court of Appeals, which governs North Carolina's federal courts, the judges ruled that an informant's payout may be deferred until after a trial, provided the arrangement is disclosed in advance.
But if a federal case doesn't go to trial, the issue is more nuanced, said Richard E. Myers II, a former federal prosecutor and current UNC-Chapel Hill law professor.
Myers said he does not see ethical problems with undisclosed bonuses when a case results in a plea deal. They are sometimes justified when a prosecutor doesn't want to put an informant's life at risk unnecessarily, he said.
Myers understands defense attorneys' concerns. "The prosecutor is holding either ace or joker and you don't know which," he said. "But that's how these things work."
In its letter to City Council, the Southern Coalition calls for DPD to explain why the bonus program was never revealed to prosecutors or defense attorneys. It also asks the department to release in unredacted form all records pertaining to conviction bonuses.
"At minimum, these 36 cases will have to be reviewed, and it's possible that motions for appropriate relief will be filed, which will tie up the court system," said Meier, the defense attorney. "This should happen even for people who received probation or completed their sentences, because of our habitual felon laws and record levels."