Copyright The Intercept
When LeBron Gaither was 17, he got into an altercation with a staff member at his school that resulted in assault charges. As Gaither faced the possibility of a criminal record, a Kentucky State Police detective offered him a deal: Charges would go away if Gaither agreed to become a drug informant. At the time, such an agreement was illegal without consent from Gaither’s parents or guardian. But Gaither agreed. In 1996, Gaither’s body was found in the woods. Gaither had helped police build a case against a local drug dealer, and a grand jury member had tipped off the dealer that Gaither had testified against him. An autopsy revealed Gaither had been tortured before he was murdered. This episode revisits Gaither’s case and others in which police were reckless and careless with the lives of those they pressured to become informants. Transcript Radley Balko: On a Monday morning in July 1996, police officers escorted LeBron Gaither through the courthouse in Marion County, Kentucky. It was an odd place for the 18-year-old to be. LeBron wasn’t in court to answer for some crime he had committed. Instead, he’d come to court to tell a grand jury about a cocaine purchase he had helped arrange. The following day, July 16, LeBron was back in court, this time in neighboring Taylor County. Again, he told a grand jury about a drug sale that he had helped arrange. LeBron, it turns out, had been working as a confidential informant for the Kentucky State Police. But even for an informant, his appearance in court was unusual. Informants almost never testify in front of grand juries. Their identities are supposed to be kept secret. Until that week, no one other than a few police officers knew LeBron was working with the cops —not even his own family. Shawn Gaither: We were never even told that he was going to even attempt to be an informant, or they were going to use him as an informant. Radley Balko: That’s Shawn Gaither, LeBron’s older brother. Shawn Gaither: We as a family would have absolutely told him, no, you’re not doing this. Radley Balko: In fact, LeBron Gaither had been working with the police for almost a year. And it was a lopsided arrangement. It all began when he had an altercation with an administrator that resulted in the school calling the police. In exchange for declining to charge him with assault, the cops asked if he’d become an informant instead. It would be dangerous work. LeBron hadn’t yet turned 18, and no one in law enforcement talked to his parents before recruiting him. Shawn Gaither: I think he just wasn’t educated enough to know the danger that he was truly putting himself in, nor do I think that those dangers were explained to him. Radley Balko: The single most important responsibility police have when dealing with informants is to make sure their cover isn’t blown. It’s why courts defer to police when they rely on an informant’s word to obtain search and arrest warrants without ever identifying the informant by name. Yet that week in July, the police marched LeBron through two courthouses and had him testify in front of two separate grand juries, with no effort to conceal his face or his identity. One of the Taylor County jurors recognized LeBron. She tipped off her friend Jason Noel, a drug dealer who was already facing charges. Noel knew LeBron, and, as you might imagine, he was angry. The very next day, LeBron Gaither’s police contacts picked him up, outfitted him with a recorder and a transmitter, and set him up to make yet another drug purchase. It was Wednesday, July 17, 1996. The target this time: Jason Noel. Shawn Gaither: They were going to set up one more drug buy that was going to end in a bust. He was supposed to walk up to Jason’s car. Apparently, law enforcement was around the area, but in undercover vehicles. And the minute that he had the drugs in hand, his words were supposed to be “This looks good.” And law enforcement was going to swarm in, arrest him, arrest Jason and anybody else that was in the car. When my brother leaned into the car, there was a gentleman in the back seat that he didn’t know was in the back seat. Jason told him to come around to the passenger side, get in, so that they could do the transaction. My brother did. And then the car drove off. Radley Balko: The police tried to follow the car but eventually lost track of it. They never saw LeBron Gaither alive again. Sarah Stillman: To be an informant is a very, very dangerous thing to do. Alexandra Natapoff: Exposing the identity of an informant in a public courtroom — colloquially known as “burning an informant” — in other words, revealing their identity and then using them again, was such an obvious breach of care, was such an obvious part of informant use rules. Radley Balko: From The Intercept, this is Collateral Damage. I’m Radley Balko. I’m an investigative journalist who has been covering the drug war and the criminal justice system for more than 20 years. In this series we’ve been telling the stories of people who needlessly died in the war on drugs. LeBron Gaither is one of them. LeBron didn’t sell, buy or use drugs before he became an informant. He just wanted a way to stay out of legal trouble. He trusted the police to protect him. And he’s not the only one. Sarah Stillman: Kids are being used as informants. People with serious addictions are being used as informants. People with mental health and disability issues are being used in ways that strike me as grossly and patently dangerous and often results in injury or death. Alexandra Natapoff: Sometimes people are shocked at how cavalier our criminal system is about the lives and the well-being of informants, and they say, “How can this be? How do we permit this?” One of the answers to that question is that the law permits it. Radley Balko: The modern war on drugs dates back to the Nixon administration, half a century ago. In that time, the United States has produced laws and policies ensuring that collateral damage isn’t just tolerated, it’s inevitable. Confidential informants like LeBron Gaither are seen by our criminal justice system as expendable. The police are permitted to use vague, unenforceable promises to lure them into dangerous situations they aren’t prepared to handle, sometimes with money, but often with the assurance of clearing their records. They rarely end up better off than they were before when they started working with police. They’re asked to interact with dangerous people, but without weapons or training. And with no real oversight, police can dangle promises of a clean record in exchange for cooperation, then repeatedly renege on their word until the informant agrees to help with additional cases. And because this work is all done in secret, their stories are rarely told. This is Episode Three, “Blown Cover: The Preventable Murder of LeBron Gaither.” Shawn Gaither: So I am Shawn Gaither. My relationship to LeBron is, I’m his oldest brother. Wherever I went, he was with me. We loved to play basketball as kids. We had a lot of good friends. We pretty much spent most of our childhood together. Where there was one, there was the other. Radley Balko: The Gaither brothers were big sports fans, especially football. They went to church together and leaned on one another during a childhood that at times could be difficult. Shawn Gaither: We lived in New York for several years and then we moved to Kentucky when I was 7. And so when we moved to Kentucky, my mom decided that she didn’t really want to come to Kentucky. So my grandmother took custody of us, and she raised us as if we were her own kids. So our grandmother had us until we were 15 and 14. And when mom came back, she got custody of us. Radley Balko: The Gaithers’ mother arrived in Kentucky during a challenging time for any kid: their adolescence. She settled one county over from where they lived with their grandmother. But Shawn Gaither didn’t want to move. It would have meant leaving his friends and his school. So he decided to stay behind and live with his aunt. He and LeBron remained close, and in the years that followed, he saw his brother struggle with the challenges of living with an addicted parent. When LeBron was in high school, he had an altercation with a faculty member that would put him in the hands of the cops — and ultimately lead to his death. Shawn Gaither: So the story we got was that one day, the assistant principal, [Charles] Lampley, was going around talking to all the classes about students disrespecting teachers and how the school was going to handle that going forward. My understanding through his teacher and his classmates — when the assistant principal was talking, my brother raised his hand and said, “I got a question.” And based on what I know is that, his question was, “Well, what happens when teachers are disrespectful towards students, and the student’s not being disrespectful?” There’s a couple of stories that happened after that. Allegedly, he got up and was told to go to the office by the assistant principal and that he would talk to him about it later. The first story was that when he walked past the assistant principal, he shoved him. The assistant principal fell and ended up breaking his hip. And then the second story we got was that when he went to leave the classroom, he said something. The assistant principal stepped in front of him, but tripped over my brother’s feet and fell. So to know exactly what happened, it would be listening to third and fourth parties to try to figure out what exactly happened. Ultimately, the assistant principal did break his hip. There’s no denying that. Radley Balko: As Shawn Gaither notes, accounts of the incident differ. The Louisville Courier Journal reported LeBron Gaither punched the assistant principal in the jaw, causing him to fall and break his hip. Shawn Gaither: They apparently took him to the police station that day. And whatever conversations happened at the police station happened. To this day, I still don’t know what those conversations were. Obviously, it led to what he ultimately started doing for the law enforcement. Radley Balko: LeBron was expelled from school following the alleged assault. He was later arrested for brandishing a gun during a dispute. Sarah Stillman: Kids can be caught up in something that happened on the spur of the moment, and they’re facing a drug charge. And then on the spot, they suddenly have this way out of it. Radley Balko: That’s Sarah Stillman, a staff writer at the New Yorker who’s written at length about how young people are baited into working as informants in the war on drugs. Sarah Stillman: And so I could imagine, to anyone, that would be very appealing. But especially if you’re a young person who doesn’t fully understand the legal system and you think that there’s a way out for you, the cops are providing you a way out, and so you take it. Radley Balko: For her award-winning 2012 investigation in the New Yorker, Stillman interviewed more than 70 people, many of whom had once worked as informants themselves. Sarah Stillman: In many of the interviews I did, people had very good reasons that they felt vulnerable and that they were willing to take dangerous deals, which included a young transgender woman who feared all the really scary things that could happen to her if she was incarcerated and put in a male facility where she did not identify as a male. I think about kids who feared that they weren’t going to graduate high school and their whole life was going to be derailed by what could have been a minor drug charge, but they were told that if they didn’t do this, that they could face really serious repercussions. Radley Balko: LeBron Gaither was facing assault charges. Shawn Gaither: They told him he was going to do 20 years in prison for assaulting a principal. Now, being that he was, I’m assuming 16 at the time, 16, maybe getting ready to turn 17. I don’t know how you could tell a kid that they’re going to do that amount of time when there’s conflicting stories of what actually took place. Radley Balko: Just a quick aside here: Not all of the details that Shawn Gaither recalls from his brother’s case match up with police, court, and media records. That’s entirely understandable. The events in this case happened nearly 30 years ago, and human memory is fallible. We also know that police can be deceptive about how they work with informants, and the secrecy and lack of oversight make it hard to verify police reports. Shawn says police made his brother promises they could never have kept, like arranging a scholarship so he could play college football. But he also admits that police have denied that LeBron was ever threatened with 20 years in prison or that they made any such promises to his brother. What is clear is that police first approached LeBron after the altercation at his school, that they asked him to consider working as an informant after he turned 18, and that he agreed. It’s also undisputed that he was paid for that work. Fred Capps: You recall when it was that you started working more closely with LeBron? Danny Burton: Wasn’t long after his 18th birthday that we got together. Radley Balko: That’s Detective Danny Burton, testifying at the murder trial of Jason Noel in 1999. We’ll play excerpts from his trial throughout this episode, and apologies if the 25-year-old recording is a little scratchy. Here Detective Burton describes how he first began using LeBron to make drug busts. Fred Capps: So you dealt with him as a paid informant. Danny Burton: That’s correct. Fred Capps: On the same basis as you stated earlier, there was state police policy to pay informants $100 for felony cases they assisted with, and $50 for misdemeanor cases they assisted with? Danny Burton: Yes. Radley Balko: In the roughly 10 months LeBron worked as a paid informant, he earned more than $3,000. If the pay Burton described is accurate, it means LeBron worked at least 30 cases, and possibly as many as 60. Shawn Gaither: My brother went into this completely green. He had no history of buying drugs. Radley Balko: Looking back, Shawn says there were at least some clues about what was going on. Shawn Gaither: I remember the day my grandma called me and said, “Do you know who this gentleman is that your brother keeps getting in the car with, that drives a red Dodge Viper?” I’m like, “I have no clue who that is.” I remember a week or so after that, he and I had a conversation, and I asked, I said, “Who is this guy?” He goes, “Oh, it’s just somebody I know.” Radley Balko: The red Dodge coming by the house was actually a Stealth, not a Viper. The police had seized it from an alleged drug offender. Detective Burton got to drive it as his work car. Danny Burton: I would get with LeBron. We would get together. I would pick him up. If he was going to a certain area, I would get him as close as I could without trying to expose myself. And he would exit my vehicle and walk, or he would go to a payphone and call individuals that would be doing business. And he would tell them where he would be. They would come to him. He would get into a vehicle with them, do the transaction. And then he would come up with a reason that he needed to be at a mini mart or a prearranged place where he knew I would be and get close as he could and then he would walk to me when the transaction was over with. Radley Balko: On the afternoon of July 17, Burton ran through the latest plan with LeBron. This time, the target of the sting — Jason Noel — knew LeBron was working with the cops. That’s thanks to the tip from his friend who happened to be on the grand jury. John Niland: Now, in the two and a half, or almost three years at that point of work that you had done in undercover enforcement, did you ever had an informant testify before a grand jury before? Danny Burton: No. John Niland: And the reason that, in fact, it was something that you thought was a bad idea. Would you agree? Danny Burton: I didn’t like the idea. John Niland: And the reason that it is not a good idea is because the cover of an undercover informant then is blown at that point, or possibly. Danny Burton: Everyone on the grand jury knows who it is, yes. John Niland: And everyone in the grand jury and then perhaps everyone who is in the courthouse that may be involved in any type of drug activity. Danny Burton: There’s always the possibility of whoever’s in the courthouse could see and find out, yes. Radley Balko: It wasn’t Detective Burton’s decision to have LeBron testify. But it was up to him and his team whether to put LeBron back out in the streets the very next day. And if he knew the risk there was real — that LeBron’s cover had been blown — that decision put LeBron in quite a bit more danger than usual. The bust was supposed to happen at a grocery store called Nolley’s. Here’s Detective Tim Simpson describing the plan. Tim Simpson: Mr. Noel was to bring some cocaine, approximately half ounce, to meet Mr. Gaither at Nolley’s Food Mart on 70. Fred Capps: And on behalf of the state police, in your mind, as you were assisting in the preparation of that — how is that to go down or to occur there at the food mart? Tim Simpson: It was going to be a, what we refer to as a “buy bust.” Mr. Gaither was to ask to see the dope. Once it was shown to him, he was going to give us a signal to come in and arrest Mr. Noel on the scene. Radley Balko: LeBron was outfitted with a transmitter, hidden inside a fake pager clipped to his side. Keep in mind that this was 1996. Cellphones were rare, and pagers were pretty common. LeBron and his handlers agreed on a signal he’d give after he’d completed the purchase. He’d say the phrase “This looks good,” which would signal to officers to confront and arrest Noel once he had dropped LeBron off. The police also had a plan to block Noel’s car if it appeared he was trying to escape. But it all escalated too quickly. As soon as LeBron got in the front seat and closed the door, Noel’s car sped away. The police gave chase for a bit but lost sight of the car around 3 p.m. They also lost signal from the transmitter. Jason Noel drove LeBron to a farm owned by his uncle. And they weren’t alone. The account of what happened next was detailed in court by several of Noel’s accomplices. This is Lamont Battee, whose nickname is Smoke. He was in the backseat of Noel’s car when they picked up LeBron. Lamont Battee: We all got out of the car, you know, we was talking to LeBron, and he had a pager or something. I said, “Let me see that, man.” Ya know, it’s a funny-looking pager. I’ve never seen one like it before. Radley Balko: Suspecting it was fake and some sort of wire, Jason Noel asked LeBron for the phone number of his pager. Gregory Scott Lyons: Jason was, he was, I couldn’t say he was mad, he was a little angry. Radley Balko: That’s Gregory Scott Lyons, another friend of Noel’s who arrived at the farm shortly after LeBron. Gregory Scott Lyons: He was angry at LeBron. Fred Capps: How do you know that? Gregory Scott Lyons: ’Cause you could just tell the way he was acting when he kept on trying to get into the fight with Smoke and LeBron. Fred Capps: What was he saying to LeBron? Gregory Scott Lyons: He told him something that — some woman had told him that he had narced on him. Radley Balko: There was some arguing, and then LeBron and Battee broke out into a fistfight about a completely separate issue. Then everyone but LeBron and Noel walked to a car to leave. As they did, they heard a gunshot. Here’s Lyons testifying at Noel’s trial. Fred Capps: And as you were leaving, you heard a shot? Gregory Scott Lyons: Yes, sir, I did. Fred Capps: Does that mean you were in your car? Gregory Scott Lyons: I was right to my car. My back was turned, and I was headed to my car, and I was just about to get in my car. Fred Capps: You heard a shot? Gregory Scott Lyons: Yes, sir, I did. Fred Capps: What did you do about that? Gregory Scott Lyons: I turned around. Fred Capps: And? Gregory Scott Lyons: And I heard LeBron say, why’d you shoot me? Radley Balko: Lyons and the others then drove away, leaving Noel and LeBron alone. Meanwhile, after losing signal on the transmitter, LeBron’s handlers with the Kentucky State Police split up and combed the area, searching for Noel’s car or for some sign of LeBron. Shawn Gaither: This is tough for me because one of the statements that he was instructed to make, that if anything was looking bad, he was supposed to say, “I wish my brother was here.” And that was going to be their cue to rush in and stop the transaction. Radley Balko: We’ll never know whether LeBron was calling out for his brother in the moments before he died. Police would later say they never heard LeBron use that phrase over the wire. If he did, it would have been after he was out of range. Sarah Stillman: To think of this child, this kid, this young person saying that, and no one being there at the other end of the line to hear him or stop the dangerous operation that was already ensuing, and to think of him being brutally tortured and killed as a result when this is the deal that he’d struck — just, that’s always going to stay with me. Radley Balko: Sarah Stillman says the situation LeBron found himself in was entirely foreseeable, given the way informants are generally treated. Sarah Stillman: This is a shockingly underregulated space. Young people or just people in general wind up in dangerous situations that spiral out of control and don’t know how to get out of it because they’re operating with forces that have tremendous power over them, specifically law enforcement. Police could choose to do the work themselves, but instead, they outsource it to vulnerable people who are often on the hook in some way, including to kids, to teenagers. Radley Balko: After the break, the police search for LeBron and Jason Noel. [Break] Radley Balko: The police wouldn’t track down Jason Noel’s car until later that evening. They stopped him. LeBron was nowhere to be found. They questioned Noel, and eventually arrested him. According to court records, when LeBron’s body was found, he appeared to have been tortured. Shawn Gaither: I was working at McDonald’s. I’ll never forget it. Just like any other day, I got a phone call around 4 o’clock. I was gonna get off work. It was my grandma, and she said, “Hey, I’m hearing that something happened to your brother.” I said, “Well, he’s got a lot of friends over there that somebody would have contacted me by now.” We as his family had no knowledge of him being a drug informant until after the detectives came and spoke to us at my aunt’s house. Radley Balko: The incident at the school, the money, and the alleged promises likely all induced LeBron Gaither to work with police. But he may also have been motivated by some other very personal reasons. Shawn Gaither: My brother was in pain because of what my mom was doing. There was no secret: Mom was into drugs. And we find out later through some hearings that he wanted to get back — and this is their words — he wanted to “get back at the people that were selling drugs that was causing his mom to be the way she was.” Radley Balko: Shawn also says their mother wouldn’t have supported LeBron’s decision to work with the police. Shawn Gaither: She would have much rather him dealt with the consequences of having to go to court and deal with the outcome of whatever that was before she would ever want her son to be a drug informant. Radley Balko: Jason Noel was tried, convicted, and sentenced to 25 years to life for the murder of LeBron Gaither. Three other men at the farm that day received sentences between 5 and 8 years. The grand jury member who tipped off Noel received 15 years on various charges. But the police officers who put LeBron in danger, who blew his cover even though they should have known better — they were never punished. Shawn Gaither: This was just pretty much poor police work, is what it boiled down to. Radley Balko: The Gaither family sued the Kentucky State Police, arguing that LeBron’s handlers had a duty to protect him and that they were negligent in their failure to do so. Shawn Gaither: Our attorney, that was one of his very first questions, is: When did this become protocol that we would bring drug informants in front of people in a full courtroom to testify against someone that they bought drugs off of, in order to get prosecution? It’s not done. That basically was the premise of all of our issues, is that they put him out there to be identified — which ultimately led to his death. Radley Balko: But LeBron Gaither isn’t the only victim of the informant system because the informant system was never designed with the interest or safety informants in mind. It’s a tool whose sole purpose is to help police accumulate arrests. Alexandra Natapoff: A key aspect of understanding how the informant market works and how American law permits informants to be used, to be created, to be rewarded, to be pressured, is to recognize that the market is almost entirely unregulated. Radley Balko: Alexandra Natapoff is a Harvard Law professor, criminal justice expert, and author of the book: “Snitching: Criminal Informants and the Erosion of American Justice.” Alexandra Natapoff: American law imposes, I want to say, almost no constraints — and that’s putting it generously on police and prosecutors — when they decide to pressure someone into becoming an informant or promise rewards to someone becoming an informant. And the law itself provides almost no guard rails or oversight to that process. We, in effect, confer enormous, nearly unfettered and often highly secretive discretion on police, and then on prosecutors in the decisions about how to create and reward an informant. Radley Balko: Natapoff says police have always used informants, especially in organized crime cases. But it became far more common in the modern war on drugs. As with many drug war policies, police began using informants because drug crimes are consensual — meaning there’s no unwilling “victim” to report them. So in order to enforce these laws, the police have to help break them. They have to become part of a drug transaction, either undercover or through the use of informants. Alexandra Natapoff: Informant use is one of those great, terrible examples, maybe one of the most pithy examples, of how the American criminal system dehumanizes the people who pass through it. People become instruments. And it’s so visible in the informant market because we can see exactly what it is that the government is using people for, risking their well-being for, even risking their lives. And then we see police and prosecutors behave in conformity with this idea that people are disposable, that they have become tools in an investigation of crime, that their own well-being, that their own lives are not something that the state needs to protect. Radley Balko: Natopoff says that for most law enforcement agencies, there are no rules as to what police and prosecutors can demand or offer. The agreements with informants are often vague, and there are no requirements to keep track of how, or how many drug informants are used. Alexandra Natapoff: This culture of secrecy is one of the great destructive aspects of informant use more generally. American law is very poorly designed in order to combat it because American law and constitutional criminal procedure in particular is a little bit old school on this front — because it assumes that there’s going to be a trial. And if in fact there were a trial in all these informant cases, then we would learn, actually, the identity of the informant. We would learn, theoretically, the rewards that they were given, how many cases they operated in previously, what their histories and backgrounds were. In those rare cases where defendants go to trial, they are entitled to all kinds of disclosure about witnesses that are used against them. And the two big problems with this model, are the small problem, which is — unfortunately in the realm of informants — we have also too often seen that the government does not actually, in fact, disclose the information that it is constitutionally obligated to disclose. They don’t actually tell us everything they know about their informants. Sometimes police don’t tell prosecutors about informants so that that information will not be disclosed. There are all kinds of workarounds for our transparency rules. Radley Balko: But according to Natapoff there’s an even bigger issue that makes the just use of informants practically impossible. Alexandra Natapoff: We almost never go to trial. We almost never trigger the mechanism that is designed to produce accountability, transparency, and information about the informants the government is using. And because we permit all these deals and arrangements essentially to take place off the record in ways that will never show up at a trial and never be tested in a courtroom, we have consigned ourselves, as it were, to this enormous secretive world of deals, of violence, of crime, of vulnerability that the public will almost never learn about. Radley Balko: According to Natapoff, the problem is that our entire criminal legal system is structured not on guilt, innocence, or accountability, but on gaining leverage and cutting deals. Alexandra Natapoff: Ninety-five percent of all criminal convictions in this country are the result not of a trial, not of a testing of evidence, but of a deal, of a plea. Radley Balko: And an informant’s agreement is essentially a plea bargain, but without judicial supervision. Alexandra Natapoff: We use all kinds of terms for informants — cooperators, snitches, confidential informants, compensated criminal witnesses — but it boils down to one core feature, which is the deal. That we have authorized the government through the criminal system to barter and negotiate over guilt in exchange for information. And we don’t regulate that deal. We, in effect, have created an enormous deregulated marketplace for guilt and information in which the government can pressure almost anyone or reward almost anyone for anything it wants in exchange for almost anything that it is willing to offer. Radley Balko: In the case of LeBron Gaither, the deal was a little money, along with alleged promises for leniency in his own case, or maybe a college scholarship, in exchange for extremely dangerous undercover work. Shawn Gaither: There’s no training for this. They don’t understand the rules of going to buy drugs from someone and the dangers that they put themselves in and things like that. Even though they’re wearing devices, none of that really matters. They don’t pack weapons to protect themselves. They are at the mercy of the people that are supposed to be watching over them. Sarah Stillman: It was amazing to me how many police forces relied upon people in unbelievably vulnerable situations to do a lot of their most difficult policing. And many cops said to me straight up, like, “We deeply need these folks to do the work we’re doing.” Radley Balko: Journalist Sarah Stillman has looked into how young people like LeBron Gaither end up in informant roles they’re clearly unprepared for. Sarah Stillman: Almost every case I’ve looked at involving an informant, the person is operating under a lot of constraints and pressures that tend to mean, I don’t think there is such a thing as informed consent when you’re fearing the risks of entering a criminal legal system that so routinely subjects people to physical and sexual violence when incarcerated; when you’re dealing with people who have addictions; when you’re dealing with people who have mental health distress. I don’t really have an easy time imagining a landscape where even with more regulation, people could really enter into this dangerous, difficult work and be sufficiently protected. Radley Balko: In one case, Stillman wrote about a 26-year-old Washington state man named Jeremy McLean who started using pain medication after hurting his back on a construction job. He agreed to become an informant after he was arrested for selling just eight methadone pills. Sarah Stillman: And Jeremy was put into a situation where he thought he’d be done with it if he did a few deals. And then he did another deal and another deal and another deal. And it’s a small town. It kept getting more and more and more unsafe — until finally he was killed. Radley Balko: Stillman also wrote about Shelly Hilliard, a 19-year-old in Detroit who was caught smoking marijuana, then pressured into informing on a drug dealer. Sarah Stillman: Shelly was really, really terrified of going to jail, especially as a young trans woman. And so she agreed to do this thing she knew was dangerous and didn’t want to do, but felt like she kind of had to do. She called the dealer back, but they couldn’t really arrest the guy on the drug dealing charges because they didn’t find him with drugs but he had a bunch of cash on him. Due to civil asset forfeiture, the cops were able to just take his cash and basically not account for it and just seize it and that was that — and I believe actually disclosed to him who had set him up, which was Shelly. And soon thereafter, he was enraged that he’d lost all this money and very brutally murdered Shelly. Radley Balko: But it was the 2008 murder of Rachel Hoffman in Florida that generated media coverage, public anger, backlash, and eventual calls for reforming how police use young informants. Hoffman was young, white, and pretty. Her death resonated with portions of the country that had been oblivious to deaths like LeBron’s. Note the tone in this report on her case from ABC News’ “20/20.” Newscaster 1: She could be anyone’s daughter, even yours. Just out of college and caught with marijuana. Newscaster 2: But she did not get a slap on the wrist or jail time; she got an offer from the police. Sarah Stillman: Rachel Hoffman was a 23-year-old recent college graduate in Tallahassee. Radley Balko: Police searched Hoffman’s apartment after receiving a complaint of a marijuana smell and suspicious activity from her unit. She allowed them to search. Police Chief Dennis Jones: We found roughly a quarter pound of marijuana. It was present during a search warrant. Reporter: If you were to hold that, how much would that be? Police Chief Dennis Jones: A baggie. Radley Balko: The police claimed they also found a handful of Valium and ecstasy. ABC’s “20/20” pressed the police chief to specify just how much. Police Chief Dennis Jones: I think there were six pills. Reporter: Six pills. Police Chief Dennis Jones: Yes. Reporter: Is that a lot? Police Chief Dennis Jones: It’s not a lot, but it’s it’s enough to make it a felony. Host: Under Florida law, Rachel Hoffman’s six pills and the baggie of marijuana might have meant four years in state prison. Liza Patty: She was really scared. They told her that she could go to jail for four or five years. When you’re 23, that’s that’s an eternity. Sarah Stillman: And when she got caught, the police basically said, “You can go away to prison for a long time, or you can become an informant, come to work for us.” She agrees, thinking, like, she actually thought, “Oh, maybe this will be an interesting adventure.” She wanted to like write a book about it. Radley Balko: If that sounds naive, that’s exactly the point. Police rely on young people remaining oblivious to the risk of what they’re asking them to do. Sarah Stillman: The police set her up with a wire and asked her to go buy a large stash of cocaine, I believe some ecstasy pills, and a handgun. Host: Rachel called her mother on Passover to tell her she was going to be involved in a police sting. Margie Weiss: And I said, “Are you kidding me? Don’t do it. And I’ll have to call your dad ’cause this is wrong. This is very wrong.” And she said, “Mom, I don’t want you telling anybody. I don’t want you to tell dad. I don’t want you to tell my lawyer. I don’t want you to tell the drug court because I’m getting all my changes dropped so I can get out of drug court earlier.” Sarah Stillman: And so she goes along to that deal, and the police said, don’t worry, we’ll be tracking, we’ll keep tabs and everything, make sure that you’re safe. Instead, the police lose track of her. She gets there. One of the guys sees the wire in her purse — and shoots and kills her. So this thing that she thought was going to be a simple way out for her wound up being, basically, a death sentence. Radley Balko: The outcry following Rachel Hoffman’s death did actually lead to some change. In 2009, the Florida Legislature passed “Rachel’s Law,” which set some basic guidelines for the use of confidential informants. Among them: Informants have to be told a reduction in their charges isn’t guaranteed, and they have the right to consult with an attorney. Police working with informants have to be specifically trained. And law enforcement agencies must develop written policies for working with informants. But these would seem to be pretty ground-level regulations. A few other states have followed suit. Some have passed laws saying minors can’t be used as informants without parental permission. Alexandra Natapoff: I do think there are some spaces of hope, and they come because we’ve started to see some pushback: legislative pushback, popular pushback, journalistic pushback. When I first started writing about this issue, when I first published my book, it’s called “Snitching,” back in 2009, there was not very much reform on the ground. And by the time I published the second edition of the book, just a couple of years ago, more than half of all states had either considered or passed reform in this space. Radley Balko: Natapoff says more significant reform will only come once the general public understands the larger context in which informants are used. First, despite the fact that their claims are used to obtain volatile search and arrest warrants, informants aren’t particularly reliable. They tend to either be career criminals themselves, desperate people in dire predicaments, or both. Then, there’s the matter of who these operations tend to target. Alexandra Natapoff: So there’s this mythology and the justification for using informants — that we use informants who are little fish to get big fish. And that’s why we need to “accept” this deal with the devil, as it were, because it’s the only way we can work our way up the criminal food chain. But it is a myth. In fact, we often reward big fish for turning in a bunch of little fish. We reward arrest, we reward bulk. We reward, as it were, productivity, which is not the same as rewarding public safety, which is not the same as rewarding going after the most culpable. And so we’ve seen in the war on drugs in particular that the use of informants to generate low-level arrests — even bad arrests, as we’ve seen in some of the wrongful conviction cases. It’s an incentive for police and prosecutors to bulk up their numbers and sometimes even get additional funding and support for their work. That’s a terrible incentive. It’s an incentive to use the worst tools to get the worst outcomes. Radley Balko: As with much of the criminal justice system, there are also racial disparities. For example, we know that though the rates of drug use and sales among Black and white people are roughly proportionate to the population, police disproportionately arrest low-level drug dealers and users who are Black. And to bust Black dealers, there’s an assumption among police that you need Black informants. Shawn Gaither now works as a law enforcement officer himself, as director of the Nelson County, Kentucky, 911 call center. But he too thinks these racial blinders are a big part of the reason why his brother was murdered. Shawn Gaither: I think they saw an opportunity for someone that was in the Black community to be a drug informant because everybody they went after was Black. Jason was the only white guy that we ever found out about that was not Black. All the other people in Lebanon and in Campbellsville that he had bought drugs from were Black, every single one of them. So I believe they were targeting a specific demographic. Radley Balko: According to Sarah Stillman, despite police promises that informant work can steer lives back on track, it tends to have the opposite effect. Sarah Stillman: I saw people who were promised, this could be a path to get out of criminality. Instead, it’s kind of asking a young person to do the literal opposite. I definitely talked to families where their loved one is struggling with an addiction. They are trying to get out of it. They are trying to break that pattern. And then they’re literally being sent into the same communities and situations that caused them to be immersed in their addiction. So they’re going back into a drug house. They’re going back into a social situation of the people who are selling to them. So understandably, that’s not the easiest way to break an addiction, to be sent back into a situation that’s both dangerous and drug-infused. Radley Balko: Over time, the ongoing use of informants can also make communities less trustful of police, which makes it harder to solve crimes in those communities, and thus makes them less safe. [“Stop Snitching” song plays] Stop snitching. Stop snitching. Stop snitching. … Radley Balko: The “Stop Snitching” movement — which entered mainstream popular culture in the last two decades — began in part because of how police were using informants. Alexandra Natapoff: One of the first times I ever really met informant use, the first time I really grappled with it, was when I was working in Baltimore and as part of the community-based lawyering program that I was in, I was teaching classes in afterschool sessions and in church basements. And I had the opportunity to talk to a lot of young people in Baltimore through these classes. In one of these sessions, one of the kids asked me — or I guess I should say one of the kids told me — “So police let drug dealers stay on the corner ’cause they’re snitching. Is that legal? I mean, can police do that?” When I got over the shock of having a 12-year-old explain to me how the criminal system worked on the ground, I explained to him that, yes, actually, police do have discretion to permit a person committing crimes like drug dealing to remain at large if they’re providing information. And this child and his friends in the class, they were disgusted. They said, “Well, the police aren’t doing their jobs, and all you have to do is snitch and you can keep on dealing.” And it really struck me from their questions and their knowledge and their responses that they had gotten the message that justice was for sale. [“Stop Snitching” song plays] Radley Balko: As we mentioned earlier, informants have long served as an important tool in police investigations. But the war on drugs has turned out to be a particularly poor fit for the tactic. Sarah Stillman: There’s certainly situations where an informant probably can make a difference. And there’s probably a lot of white-collar crimes, for instance, where the tapes of informants have made a really big difference to being able to obtain accountability. But I would argue in the drug war, I’m not seeing the cost-benefit analysis really making sense for our societal well-being. Law enforcement uses this as such a consistent tool that allows them also to have other people do the most dangerous parts of their job. Radley Balko: It took over 20 years for LeBron Gaither’s family to be compensated for his death. Despite blowing his cover and failing to protect him, the state fought their lawsuit all the way to the Kentucky Supreme Court. Shawn Gaither: This thing dragged on for years, years on years. And then finally, somebody said, you know what? You were wrong, and you owe this family this. Radley Balko: In the end, LeBron’s family only received about $300,000. That’s a paltry sum given how badly police erred in this case. And of course, that money won’t bring LeBron back. Shawn Gaither: We’ll never know what he could have done, what he would’ve became. So honestly and truly, the money for me wasn’t even — I could have cared less if there [wasn’t] money that came out of it. And so I think he took what he thought was the easy road out. And not knowing that the road he engaged in was way more difficult than what he probably would experience if he had played this thing out in court. Radley Balko: As I mentioned, Shawn Gaither now works in a police agency himself. He’s friends and colleagues with other police officers, and when we spoke to him, he was quick to differentiate most everyday cops from the officers who put his brother in peril. Still, when it comes to his own son, the lessons he learned from LeBron’s death live on. Shawn Gaither: So my son got in trouble. When he first turned 21, he had some marijuana in his car. And the first thing that popped in my mind was, “Don’t say a word. I am on my way.” Because I refused to allow him to put himself in a situation over some marijuana that my brother was in. And so my advice to him was, “Don’t say a word. Don’t answer no questions. You ask for your attorney. I will contact the attorney. We are on our way.” Radley Balko: Next time on Collateral Damage. Tom Ballanco: One of the party guests there was Peter McWilliams. And he was very happy to share his role in all this, that he and Todd were partners, and they were gonna revolutionize patients’ access to cannabis. Peter McWilliams: Watching my normal run to the bathroom, with one puff of marijuana, turn into a meandering raid on the kitchen. Donna Shalala: We have a problem. Increasing numbers of Americans believe that marijuana is not harmful. Barry McCaffrey: This is not medicine. This is a Cheech and Chong show. Peter McWilliams: I am not going to rest until medical marijuana is available to every sick person who needs it in the United States. Radley Balko: Collateral Damage is a production of The Intercept. It was reported and written by me, Radley Balko. Additional writing by Andrew Stelzer, who also served as producer and editor. Laura Flynn is our showrunner. Ben Muessig is our editor-in-chief. The executive producers are me and Sumi Aggarwal. We had editing support from Maryam Saleh. Truc Nguyen mixed our show. Legal review by Shawn Musgrave and David Bralow. Fact-checking by Kadal Jesuthasan. Art direction by Fei Liu. Illustrations by Tara Anand. Copy editing by Nara Shin. Social and video media by Chelsey B. Coombs. Special thanks to Peter Beck for research assistance. This series was made possible by a grant from the Vital Projects Fund. If you want to send us a message email us at podcasts@theintercept.com. To continue to follow my work and reporting, check out my newsletter, The Watch, at radleybalko.substack.com. Thank you for listening.
