Our entire justice system depends on folks telling the truth, but the truth can be hard to find–especially when there’s no evidence to back up the accusations.
How can we tell when someone is being truthful?
Without getting too Dr. Phil here, I must point out that certain characters breed a bid more suspicion than others. For some people, walking alone at night with someone a few steps behind you will immediately raise suspicions. For others, they will never trust a word out of a politician’s mouth. I get that. Some don’t trust car salesmen. Again, I get that.
But, there are folks out there that are professional liars. They lie for a living. Their friendships our a lie. Their relationships are a lie. And, they get compensated for their deceit. Our criminal justice system breeds these high-level liars.
The moment of conception looks something like this: someone gets arrested on a serious drug offense and faces decades in prison.
And then, a ray of hope. There is a way out of this prison time.
Yes, you may never see your kid graduate from middle school. You may never see your daughter go to the prom. Or get married, or have your grandchild. Nope, you’ll be in prison for the rest of your life. Or, “if you set some people up, we’ll drop your prison time.”
Welcome to the wonderful world of confidential informants (CI).
After 26 years of defending criminal cases, I can tell you that the urge to avoid prison will drive folks to do bad things–worse things than what they’re accused of–all sanctioned by the State. Oh, the irony.
The goal of a confidential informant is to reduce their prison sentence by sending others to prison. Yes, it comes down to either the informant spending the rest of their life in prison–or someone else going to prison forever. Who are they going to choose?
Unfortunately, it is pretty easy for CI’s to set up innocent citizens (the technical term for this is entrapment). All a CI needs are two phones, some drugs, and a public meeting place. We’ve established motive.
First, the CI calls “the stooge” and sets up a meeting for something far less severe. I’ve had clients arrested for very serious trafficking charges–who thought they were meeting up to buy a misdemeanor amount of weed (for example).
Next, the CI picks a public place to meet. The key to the CI getting his Get Out Of Jail Free card is the following simple task: the CI heads over to the meeting place a few hours before the official deal and stashes drugs somewhere at the public location.
Yes, the government searches their CI prior to the meeting, which is why the CI will head over there before the official deal time to plant evidence.
While the police monitor the drug deal from the outside, the CI enters the public place and meets with the stooge, grabs the drugs he stashed hours ago and returns to his police handler with the handful of drugs he stashed earlier in the day, claiming that he bought the drugs from the stooge.
And there you have it, one Get Out Of Jail Free card.
To see this simple grift in real life, let’s take a look at the recent case of Turner v. State, 279 So. 3d 340 (Fla. 5th DCA 2019). Turner was convicted of selling methamphetamine, possessing methamphetamine with the intent to sell, and unlawfully using a two-way communication device.
Turner was told to meet a confidential informant at a Lowe’s Home Improvement store, in an outside shed. The CI wore a hidden camera, but it didn’t record Turner handing the drugs to the CI.
Side Note On Hidden Cameras: Nine times out of ten, these “hidden cameras” are just secret smartphone programs that the government installs on a CI’s phone before the CI does the deal. These hidden programs record both the front camera and rear camera at all times, and can only be detected/enabled/disabled via a USB connection to law enforcement’s laptop after the deal is done. So, the CI will never get “caught” with this program, even if someone examines the phone.
Anyway, Turner takes his case to trial, claiming that the CI actually pulled the drugs from a shelf within the shed and that the CI probably planted these drugs earlier in the day.
Now, it is pretty tough to wiggle your way out of this CI scam. After all, the police “trust” their CI. After all, the police searched their CI before entering the shed, and the CI didn’t have any drugs going in. After all, the CI then meets with Turner and comes out of the shed with drugs.
But, there is an old technology that works well in these situations. It’s called fingerprints. If Turner actually touched that bag of meth, his prints would be on the baggie.
At trial, Turner’s defense attorney argued in closing that reasonable doubt existed due to the lack of fingerprint evidence. Their argument was, at first, sloppy, but once cleaned up, the defense attorney argued that “had the Florida Department of Law Enforcement processed the baggie containing the methamphetamine for fingerprints, [Turner’s] fingerprints would not have been on the baggie”. The prosecutor objected, and the judge agreed with the prosecutor, prohibiting Turner’s defense attorney from making that particular reasonable doubt argument.
On appeal, Turner argued that the judge should have allowed the fingerprint argument.
The appeals court agreed, and overturned Turner’s conviction, finding that his defense attorney was “entitled to argue that the State’s lack of fingerprint evidence constituted reasonable doubt. The trial court erred in denying Turner the opportunity to present that argument.”
This prosecutor’s objection got Turner’s entire conviction thrown out. As the saying goes: just because you CAN object doesn’t mean you SHOULD.
The long-standing rule, which every judge reads to every single criminal jury in Florida, is that “reasonable doubt as to the guilt of the defendant may arise from the evidence, a conflict in the evidence, or a lack of evidence.” id. at 2, and Fla. Std. Jury Instr. (Crim.) 3.7.
If you think it is unfair to give the prosecutor and judge a hard time over this, keep in mind that these folks have a juris doctorate degree–they should know the law. Long before Turner, the law in Florida was well settled on the validity of fingerprint arguments (and similar doubts arising from the lack of evidence).
Over twenty years ago, in the case of Starr v. State, a conviction was overturned after the judge granted the state’s objection to a lack of fingerprint argument, ruling that a “reasonable doubt is often created by the lack of evidence of guilt and, thus, comment on the absence of evidence on an issue pointing to guilt is fair and proper comment.” 518 So. 2d 1389 (Fla. 4th DCA 1988).
So, back to the question at hand: how do you frame someone for a crime?
Let’s review today’s facts.
Turner’s case involved a confidential informant. A paid CI.
Turner’s case involved a drug deal in a public place, a shed.
Turner was never seen with the drugs, even on video. As the appellate court noted in Footnote #1, “our review of the video does not support the State’s contention that the video ‘showed Turner in possession of the methamphetamine’ “.
That, my friends, is how it is done.
[CI’s aren’t the only folks out there planting evidence, for some entertaining video footage, Google the police bodycam footage of officers planting evidence, like former Florida deputy Zach Wester, where he fabricated 120 felony drug cases by planting evidence]