I went with our Sheriff's Office last night and my conversations with detectives got me thinking.
Would we be in violation of the Michael Morton act if we withheld the identity of a confidential informant until just prior to trial?
Could a District Court accept a plea from a defendant if that defendant was not given the identity of the CI?
I ask because if our agencies have a CI who is doing good work and helping catch a lot of dealers, the agencies do their best to protect the CIs identity so they can continue to work. CIs will often be working with the SO while cases they helped make are in pre-trial plea negotiations.
This isn't something our office had really thought about and I just wanted to see what other people thought of it.
The Michale Morton Act does not disturb privileges that exist in law. so rule 508 regarding the identity of an informer is still in place. (Note tha language in 39.15(a) that is unchanged -- we have to turn over things that are "otherwise not privileged.")
...I have been reminded by people smarter than me that we must always be careful about Brady issues with CI's. Just because there may be a general privilege on the identity of an informer, they are frequently Brady considerations -- and the privilege will not protect against a due process violation.
I am going to suggest that if the court makes a finding that there is no reasonable probability that the informer can give testimony necessary to a fair determination of a material issue on guilt or innocence, that such finding is going to carry some weight whenever the contrary is argued under Brady (or 39.14). One case that might help in deciding the issue is State v. Martin, 275 S.E.2d 129 (Ga. App. 1980), which cites Rugendorf.
You might consider making two to three cases per Defendant and just don't arrest them until you have purchased drugs from as many as the CI can buy from in your community. One CI can make dozens of cases. If they are doing a good job and are wearing a recording devise the Crooks are going to recognize them anyway when they receive their discovery. Sometimes you can protect them but under those circumstances they are exposed anyway. It's convincing the cops not to bust down doors but patiently wait that is the hard part. If you have two or three purchases the Judge will know that they are trus dealers and find it harded to give them probation. Good luck. It's hard work but very good for a small town to attack the sources regularly!
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