Failure to Request Informant Instruction Ineffective Assistance

This past week, in United States v. Luck, the Fourth Circuit held that where the outcome of a criminal case might hinge on the credibility of the government’s cooperating witnesses, a defense attorney’s failure to request an “informant” jury instruction is ineffective assistance.

The opinion is available here.

During the defendant-appellant’s trial, the government called to the stand a number of cooperating witnesses who testified that the defendant was a crack dealer, and that he had sold them crack.  In addition to this testimony, there was evidence of a search warrant that had been executed at the defendant’s house – where paraphernalia, but no drugs were recovered – and a grainy video allegedly depicting the defendant engaged in a drug transaction.

During his cross-examination of the government’s cooperating witnesses, the defendant brought the witnesses’ biases to the attention of the jury – the witnesses were receiving consideration for their testimony in the form of reduced sentences and monetary compensation.  However, at the close of trial, the judge did not read the special “informant instruction” to the jury.  This instruction highlights to a jury the need to carefully examine the testimony and credibility of informant witnesses, as these witnesses may have an incentive to tell a version of events that the government wants them to testify to – even if it is not the truth.

For some unknown reason, the defense attorney never requested that the judge instruct the jury in this manner — even though the judge likely would have given such an instruction (probably without any objection from government, as such an instruction was clearly warranted).

In the end, the court held that the defendant’s attorney was ineffective under Strickland, vacated his conviction and remanded his case for a new trial.