Pro Bono and Indigent Defense

Setting a national precedent for prisoners’ constitutional rights

Does a convicted prisoner have the right to refuse to snitch? After New York state prisoner Mark Burns was punished for refusing to inform on fellow prisoners and provide false testimony against a guard, counsel Noam Biale challenged this novel question in federal court – and won. The Marshall Project called his landmark victory “one of the most significant prisoner[’s] rights decisions of the year.”

Burns suffered a minor injury while working in the prison commissary. He was approached by two guards, who threatened disciplinary action if Burns did not agree to serve as an informant and frame another guard for the injury. When Burns declined, he was placed in segregated confinement for nearly nine months.

Burns filed suit pro se in the U.S. District Court for the Northern District of New York, alleging retaliation for the exercise of his constitutional rights, but lost the case. A year later, the U.S. Court of Appeals for the Second Circuit appointed Biale as Burns’ pro bono counsel. Although no appellate court in the country had ever recognized such a “right not to snitch,” Biale crafted a creative, compelling argument based on First Amendment protections that paid off when the Second Circuit adopted his theory in its opinion. The court held that “the First Amendment protects both a prisoner’s right not to serve as an informant, and to refuse to provide false information to prison officials.”

According to Andrew Cohen, a legal analyst and senior editor at The Marshall Project who spoke to NPR’s The Takeaway, the case sets a “new precedent in the judicial system that [can protect] other [prisoners] who may be in this situation – not just in the Second Circuit, but … around the country as well.”

“It was very important… [to my client] to have somebody recognize that what was done to him was not right,” Biale told Law360. “And I think that he feels that he has a measure of justice and closure because of the court’s decision.”