What We Know About Whether Earl McNeil Was An Informant For The DA
Wednesday, September 5, 2018
Credit: Matt Hoffman/KPBS
Last month, local activists called a press conference to say the San Diego district attorney should not investigate the death of Earl McNeil, a black man who died after being arrested by National City police in May.
"What we also want you to question is conflict of interest," said Tasha Williamson, an activist and spokeswoman for the McNeil family. "Because the DA used Earl McNeil as a confidential informant."
The district attorney is currently investigating McNeil's death but won't say when that will be finished. A spokeswoman for the DA said her office asked the California Attorney General whether there was a conflict of interest in that investigation, and the Attorney General’s Office promptly said no.
But Williamson and other activists maintain the district attorney's office had an ongoing relationship with McNeil. So what exactly do we know about McNeil's history as an informant?
First, let's define terms. Alexandra Natapoff is a law professor at UC Irvine. She's also an expert on informants and runs the website snitching.org.
"So we use a lot of terms in this world: informant, cooperating witness, confidential human source, snitch," she said. "And different jurisdictions, different departments, different police, different prosecutors, different groups use those terms differently. But they all boil down to the same idea, which is that the government is trading leniency and other benefits to criminal suspects or criminal defendants in exchange for something."
Both the district attorney and the San Diego Police Department would not release records or information about whether McNeil was an informant. They also wouldn't say whether McNeil was a witness in any trials — something that's public record.
But we do know McNeil was a witness in a high-profile murder case in 2009. It involved a drive-by gang shooting on New Year's Eve in 2003, outside Dr. J's Liquor store on Logan Avenue. Two women on their way home from church were killed in a car outside the liquor store and a seven-year-old boy was also injured.
McNeil testified the defendant, James Carter, told him he accidentally shot the women. Carter was convicted and is serving life in jail.
Natapoff said while law enforcement officers do not have to disclose what they offer informants, a trial requires the government to reveal everything offered a witness in exchange for testimony.
"When an informant becomes a witness, that can trigger a deeper level of disclosure and scrutiny," she said.
And that's what happened with McNeil. So here's what we know.
Other witnesses in the case were given cooperating agreements that traded reduced jail time for information, but McNeil did not receive one, according to court records.
When McNeil testified in front of a grand jury in 2009 for the Dr. J's shooting case, the prosecutor, Robert Hickey asked him:
"Why are you willing to come in front of this jury and tell this story today?"
"I just feel that it's the right thing," McNeil responded. He went on to say he expected gang members would want revenge on him for testimony.
"Are you — why are you doing it then?" Hickey asked.
"Because it's — I thought it was the right thing to do," McNeil responded.
But McNeil was offered something.
The district attorney paid almost $30,000 in expenses over two years for McNeil and his family to move from San Diego. This is all detailed in another round of testimony he gave on the same case.
A lawyer named Brad Patton cross-examined McNeil and went through a long list of things the district attorney had paid for.
"Did you receive $500 directly from somebody from the District Attorney's office to be used for food and incidentals for two adults and three children?" Patton asked.
"I'm not sure how much, how much money it was, but I know we used to receive a payment," McNeil responded. "But like I said, I never like — I always give it to my wife, because she had the bank account."
"If a witness or informant is given anything in exchange for testimony or information, that can create problems," Natapoff said.
"We permit the government to pay its witnesses in the most valuable currency you can imagine which is their own liberty," she said. "We have permitted the creation of an enormous informal off the record market exchanging information for liberty and leniency in sentencing."
The San Diego district attorney's office would not provide an interview or comment on its use of informants.
But Gloria Collins, a former prosecutor with the office for 25 years, said informants are an important source of information.
"Because you need to find out what happened, or maybe you need to find out why," she said. "You don't have to prove motive. But most jurors want to know why something happened and often an informant can give you that."
Collins doesn't look like a prosecutor anymore. One day last week, she wore a red-checkered shirt, dirty jeans and boots and reached her hand across a fence to stroke the mane of one of her horses.
"In 2005, I got this ranch and I actually started coming in late leaving early," she said.
Collins left the district attorney's office and now lives on her Ramona ranch with horses, chickens, rabbits and dogs.
She also works part-time as a defense attorney and gives expert testimony on the use of informants.
"Most jurors want to know why something happened and often an informant can give you that," she said. "I always tell jurors that using a criminal informant is tantamount to using a picnic basket with a snake in it. Sometimes you need the basket but you need to be very careful when you stick your hand in there."
Collins also submitted a writ of habeas corpus — something like an appeal that requests a hearing based on new evidence — on behalf of James Carter in the Dr. J's shooting case.
It wasn't based on McNeil's testimony, but another witness in the case. Collins argued the witness, a jailhouse informant named Jarius Bush, was given a reduced sentence for his testimony, but that deal wasn't disclosed during the trial.
"This witness committed perjury and his lawyer knew it," Collins argued. "And the prosecutor knew it."
But the court rejected the habeas corpus because it argued Collins filed six years after she found out about the deal, so it was too late. The judge also wrote that her information was based on hearsay.
Collins said she hopes another lawyer takes up her work and appeals the rejection.
She said it's important for prosecutors to disclose everything they've offered a witness, so the jurors can weigh that information and decide whether to believe the witness.
That's what happened with McNeil. His payments from the DA are documented in court records, and that's what activists point to when they question a conflict of interest.
Activists maintain the San Diego District Attorney's office had an ongoing relationship with Earl McNeil. So what exactly do we know about McNeil's history as an informant?
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