Mimesis Law
28 June 2017

Snitches, Feds, and Prosecutorial Misconduct

Sept. 29, 2015 (Mimesis Law) — As prosecutors often tell prospective jurors during voir dire, most crimes do not occur in broad daylight in front of numerous credible witnesses.  Crack addicts, drunks, prostitutes, and convicted felons are the staple lay witness on many street crimes and it is in a prosecutor’s best interest to prepare a jury for them.

Generally, jurors are open minded about hearing from “tainted witnesses.” They recognize that a defense attorney’s attack on a witness’ priors and character is par for the course in a “street crime,” and they evaluate that witness’ credibility accordingly. A crack addicted prostitute may not be someone that a juror would invite over for dinner, but that doesn’t necessarily mean that the juror can’t find their testimony truthful. The reasoning behind that is that in most situations, the “tainted witness” is testifying without an ulterior motive or benefit.

Those witnesses who do testify with an ulterior motive or benefit, however, are much more likely to be distrusted by a jury, and rightfully so. There are plenty of witnesses who would testify to almost anything if given the promise of a reduction of their own sentence, or, in rarer instances, a financial reward. By law, prosecutors must inform defense counsel of any benefit provided to a witness in exchange for their testimony, whether it be immunity from prosecution, a time cut, or a payout. Defense counsel is then free to attack the credibility of the testimony because of those benefits.

Witnesses who receive a type of deal in exchange for testimony are commonly referred to as “snitches” and quite often they are regarded with more disdain than the defendant on trial. Prosecutors usually abandon the term “snitch” for “cooperating witness” or “confidential informant,” or a recent one that I heard: “concerned citizen.”   A prosecutor usually has to spend a significant amount of time during voir dire talking about snitches cooperating witnesses and ensuring that jurors can keep an open mind as to their credibility.

Interior of a jury box in the 232nd District Court, Harris County, TX

Interior of a jury box in the 232nd District Court, Harris County, TX

As noted above, once a benefit is given (or promised) to a witness in exchange for their testimony, it absolutely must be disclosed to defense counsel. It stands to reason that if a case requires a compensated witness’s testimony, that case might not be the strongest case to begin with. That witness’s testimony and the benefit he or she received for testifying can quickly become the entire point of the case, which makes turning over the details of the deal all that more important.

In a Houston case, earlier this year, Joseph Bailey was convicted of the murder of Sergio Saldana. The issue of whether or not witnesses for the prosecution were compensated for their testimony is now in question.

Before trial, [prosecutor Sarah] Mickelson acknowledged that she intended to put several informants on the stand and said they did not receive any benefit for their testimony, according to Bailey’s attorney, Mike Trent.

. . .

A day after the trial, in which Mickelson secured a conviction with help from an FBI agent who works for the Houston-area gang task force, the FBI paid one man $3,000 and two women $1,000 each, according to court records.

It would not be the first time that a prosecutor deluded herself into believing that a benefit conferred to a witness after their testimony did not constitute a deal that needed to be disclosed. After all, how could a witness’ testimony be tainted if they didn’t know about the benefit prior to testifying, right?

Wrong. The fact that the benefit occurs, or is even promised, after the witness’ testimony does not preclude it from being Brady evidence. The duty to disclose Brady evidence continues after the trial.

In the interest of full disclosure, Mike Trent was one of my direct supervisors when we both worked at the Harris County District Attorney’s Office, and we remain friends. I have also worked with Sarah Mickelson on several cases and have always found her to be professional and fair in my experience. The allegations levied against her are extremely serious, and it is hard to believe that she would be so foolish.

Having served for nine years as a state-level prosecutor who occasionally dealt with federal agencies, I’m somewhat hesitant to immediately jump on a bandwagon calling for Mickelson’s immediate termination, disbarment, execution, whatever. When I was a brand new prosecutor, a very senior prosecutor told me, “Beware of feds bearing gifts.”

Over the following years, I learned that dealing with federal agencies was often a very one-sided affair for a State prosecutor. Federal agencies share information on a “need to know” basis, and sometimes a state-level prosecutor doesn’t make the short list.

I recall dealing with what initially seemed like a run-of-the-mill traffic stop that resulted in a suspect being arrested for possessing a kilo of cocaine. The arresting agency had been the Houston Police Department, but the defense attorneys kept insisting that they wanted information regarding the informants. I had no idea what they were talking about and kept insisting it was just a traffic stop case.

On the day the case was set for trial, I received a phone call from a DEA agent, who informed me that since the case was now set for trial, he probably needed to turn over the large stack of tapes between the informant and the suspects. All of this was immediately turned over to defense counsel, but I found the incident to be very embarrassing and damaging to my credibility as a prosecutor.

I have seen the documentation from the FBI that states that Mickelson “concurred” with each witness being paid at the end of trial, which this seems very far removed from normal protocol. She doesn’t work for the FBI and it is hard to imagine that agency being so deferential to a state prosecutor that they would first seek approval before paying out.   During my tenure as a prosecutor, I never had any say in what a witness was paid by any agency. That just wasn’t part of a prosecutor’s job description.

Whether she had a hand in authorizing the payments or not, she had a duty to disclose the payments if she was aware of them.   Based on my personal experience with the feds, I would not be entirely surprised if she actually didn’t know.   Trent disagrees with me:

The payments were requested on February 26, 2015, the day after Bailey’s trial ended, and were made on March 6, 2015.  By that time Bailey’s case was on appeal, and codefendant Vernon Brooks’ case was already pending.  Mickelson could have disclosed the payments at any time, and, if the FBI memos are accurate and she knew about them, she was obligated to do so.  She did not.– Mike Trent

Whether the three witnesses were referred to as snitches, confidential informants or concerned citizens, their testimony was tainted and the jury wasn’t informed. Regardless of whether the blame ultimately falls upon Mickelson or it falls upon the FBI, Mr. Bailey is entitled to a new trial.

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