Snitching

Criminal Informant Law, Policy, and Research

Innocence

Snitch-based convictions overturned in Washington

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A four-year campaign by the Innocence Project Northwest Clinic and the parents of three young men has resulted in the reversal of three snitch-based convictions. Robert Larson, Tyler Gassman, and Paul Statler were freed on Friday after a judge vacated their robbery convictions. The three young men were facing sentences, respectively, of 20, 26, and 42 years. Here’s the story: Judge vacates convictions in disputed robbery. Previous posts here: More on the Spokane convictions.

Their convictions were based on the perjured testimony of criminal informant Matthew Dunham, a convicted robber who received a 17-month sentence in exchange for his testimony. Another co-defendant later admitted that he and Dunham had fabricated their testimony against Larson, Gassman and Statler.

This is an important case for a number of reasons. First, it is extraordinarily difficult to challenge convictions after the fact, even where new evidence demonstrates innocence. A judge had previously denied the defendants’ motion for a new trial after it was discovered that Dunham had lied, so the fact that the parties persevered and a court ruled in their favor makes this case uncommon.

Second, the case highlights how the lack of financial support for public defense in this country leads to miscarriages of justice. The attorneys representing the Spokane defendants were paid the paltry sum of $1,400 per case for cases that required hundreds of hours of investigation and preparation. Low attorney fees for complex cases are pervasive in many states, and they mean that even skilled well-meaning attorneys do not have the resources to defend such cases properly. For an indepth report on the phenomenon, see this U.S. Department of Justice Report: Contracting for Indigent Defense Services: A Special Report (April 2000).

Finally, it took years of work on the part of the Innocence Project and the families to bring about this reversal. The Statler family’s efforts were extraordinary: as a result of their persistence, a Washington state legislator introduced a bill that would reduce the risks of informant use and future wrongful convictions. Such efforts were necessary because the criminal system does not have good internal mechanisms to protect defendants from lying informants–wrongful convictions are difficult to unearth and even harder to fix. As happens all too often, the legal system finally came to the right result in this case only because the families refused to give up.

Supreme Court begins debating informant unreliability

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The Supreme Court released an order today denying certiorari in Cash v. Maxwell, formerly Maxwell v. Roe, an important Ninth Circuit decision discussed in this previous post. Usually the Court does not explain cert denials, but this case generated a heated debate between Justice Sotomayor, who supported the denial, and Justices Scalia and Alito who thought the Ninth Circuit’s decision should have been overturned. See SCOTUSblog post here, and L.A. Times story here.

Today’s decision is important for a number of reasons. First, it shows that the Justices have joined numerous state and federal legislators in recognizing the problem of informant unreliability. Informant-based wrongful convictions are increasingly frequent in the courts and in the news, and many states have taken up the issue. See Legislation Section of the main website. Although the Court did not answer the question today, it’s a sign of the times that the Justices are arguing about it.

Maxwell also shows how the legal debate over informant use is becoming less about procedure and more about substantive questions of reliability and innocence. Until recently, most informant litigation has been a fight over disclosure: the information that the government must disclose regarding its use of compensated criminal witnesses. The Maxwell case and the Sotomayor/Scalia debate squarely confront the substantive question of unreliability: how unreliable can compensated criminal witnesses be before the law restricts their use? Or to put it another way, how high is our tolerance for the likelihood of wrongful conviction? Even Justice Scalia concluded that the informant in Maxwell’s case was a “habitual liar,” and that there were reasons “to think it likely that he testified falsely” at Maxwell’s trial. The Ninth Circuit took the next step, holding that the Due Process Clause does not permit such clearly unreliable evidence to be used. As a result of today’s cert denial, this holding stands.

Finally, Justice Sotomayor pointed out that the Ninth Circuit relied on “an avalanche of evidence” that the informant in that case was unreliable. The existence of such evidentiary avalanches is a relatively new phenomenon. Thanks to the innocence movement and numerous new studies (see Resources & Scholarship section on the main website), courts and litigators have more evidence than ever before regarding the unreliability of criminal informants. These new data will surely change how courts consider such questions in the future.

Not “simply a thank-you”: another snitch-based exoneration in Los Angeles

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After serving 17 years in prison for murder, Obie Anthony was exonerated last Friday. Anthony was represented by the Northern California Innocence Project and the Loyola Law School Project for the Innocent. The judge found that the key witness–a pimp who received leniency as a result of his testimony against Anthony–lied, and that the government failed to disclose its deal with the informant. See L.A. Times story: Judge overturns murder conviction in 1994 slaying, and press release. Although the informant was promised a lighter sentence for testifying, prosecutor Scott Collins denied there was a deal. “It was not a deal in exchange for testimony,” he said. “It was simply a thank-you for cooperating with the LAPD in a homicide investigation.” Whether we label such arrangements a “thank you,” deal, benefit, or something else, the fact remains that informants can reasonably expect to be rewarded for their testimony and are therefore incentivized to lie in ways that other witnesses are not.

Challenge to Texas death penalty

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In an historic and rare event, a Texas judge last month began a hearing on the constitutionality of the death penalty, entertaining arguments that the system is so prone to erroneous conviction that it might violate the Eighth Amendment’s ban on cruel and unusual punishment. The defense called numerous experts from around the country (including me) to testify on various aspects of the death penalty including: error rates, the use of unreliable eyewitness testimony, junk science and forensic evidence, informants, discovery, death-qualified juries, and race. Story and witness list here: Hearing on Constitutionality of Texas Death Penalty. At the government’s request, the Texas Court of Criminal Appeals stayed the hearing after two days and the parties are now briefing matters. For additional information, see Fountain’s Pen blog: Appeals court orders stay in death penalty hearing.

Ninth Circuit overturns murder conviction based on perjured informant testimony

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Yesterday, in Maxwell v. Roe, the Ninth Circuit decided that Bobby Joe Maxwell’s due process rights were violated in 1984 when the government used Sidney “the Snitch Professor” Storch as the main witness at his multiple homicide trial. LA Times story here: Appeals Court overturns murder convictions of alleged L.A. serial killer.

This is an important case for a number of reasons. The first is historical: Storch was one of the most infamous jailhouse snitches in the Los Angeles County Jail during the 1980s, a period in which jailhouse snitch fabrication was rampant, numerous wrongful convictions occurred, and which eventually triggered a massive Grand Jury investigation and stringent reforms in Los Angeles.

The factual basis for the decision is also important. Appellate courts rarely conclude as a factual matter that a witness such as a jailhouse informant committed perjury, which is one of the reasons it is so difficult to overturn a conviction even after a witness recants. See previous post: In the news– Recantation. In this case, the Ninth Circuit decided that “it was objectively unreasonable for the Superior Court to find that Storch testified truthfully at the 1984 trial,” based on Storch’s history as an informant and his other lies at trial. From the opinion:

There is simply too much evidence of Storch’s pattern of perjury to conclude otherwise. At the time of Maxwell’s trial, Storch was already employing the “booking” formula that he would later teach others and for which he would become famous; the housing records show that Storch had physical proximity to Maxwell; Storch openly admitted that he was in possession of a newspaper article about the murders; the newspaper article itself mentioned all of the specific facts to which Storch testified–namely, that the police had found Maxwell’s palm print on a nearby park bench; and, finally, Storch contacted Deputy District Attorney Sterling Norris with the news of his cellmate’s spontaneous confession and negotiated his own deal in exchange for his testimony.

In other words, it was just too likely that Storch was lying for the government to use him. As our knowledge of jailhouse informants increases, there may be more informants who fit this too-unreliable-to-testify profile.

Finally, the case has doctrinal significance. The court held that the use of Storch at trial violated Maxwell’s due process rights. This was in large part because Storch was the “‘make-or-break’ witness for the state” and “the centerpiece of the prosecution’s case” and therefore his testimony was clearly material to the outcome of the trial. Notably, the court assumed for the sake of argument that the government did not know that Storch was lying — the due process violation flowed not from any intentional government misconduct, but because “to permit a conviction based on uncorrected false material evidence to stand is a violation of a defendant’s due process rights.” This is an important rule — it is not uncommon for defendants to discover post-trial evidence that a key informant witnesses lied–either because of recantations or other impeachment evidence. See for example this post: More on the Spokane convictions. The Maxwell decision suggests that courts may be starting to take such evidence of informant perjury more seriously.