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.
Innocence
Ninth Circuit overturns murder conviction based on perjured informant testimony
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.
Important pending legislation in New York
Legislation is pending before the New York Senate that would reduce the occurences of wrongful conviction. Recommended by the New York State Bar Association Task Force on Wrongful Conviction, the six bills address, among other things, criminal informants, eye witness testimony, recording interrogations, and improved discovery. Here are links to the legislation and the NYSB press release.
The proposed informant legislation would accomplish a number of important things. First, it would require corroboration before any criminal informant testimony could be used in court. An informant is defined as any person “who is not an accomplice and who agrees to provide testimony or evidence on an understanding that he or she will receive a favorable disposition or resolution of pending or possible criminal charges, financial benefit not associated with usual witness appearance, or other substantial benefit for himself or another person.” This is an appropriate definition–it captures all informants who have an incentive to lie in order to gain a benefit, while excluding regular civilian witnesses, whistleblowers, and victims. The bill would also improve the discovery of information about informants, preserve informant anonymity if there are safety or other good reasons, and require a special instruction reminding jurors that the informant witness is receiving a benefit and that therefore his testimony should be viewed with caution. The legislation is covered today in an AP story about Steve Barnes who spent 20 years in prison based on the fabricated testimony of a criminal informant–story available here: Steve Barnes lost 20 years to lying jailhouse snitch: proposed law would keep liars from court.
At least five imprisoned based on lying drug informant
Watch this video news clip from WINK-TV News (an ABC affiliate) in Florida: “Convicted felon: lying confidential informant sent me to prison.” The informant, Shakira Redding, admitted that she set up innocent people by fabricating drug deals: she’d buy drugs in advance and hide them on her body to provide to the drug task force as “evidence” after the alleged deals. The government had promised her money, a home, and custody of her children if she provided incriminating evidence against others. Romill Blandin was one of Redding’s innocent targets who spent 20 months in prison after Redding made a video of a man in a car that she claimed was Blandin, and then picked Blandin out of a line-up. Tellingly, Blandin never saw the video before he pled guilty–his public defender told him that he couldn’t see it unless he went to trial and that his criminal record made it likely that the jury would convict him. He chose to plead guilty instead of risking a longer sentence.
This story is an almost exact replay of the Hearne, Texas debacle in which a confidential informant working for the local drug task force set up dozens of innocent African Americans. The Hearne case was the subject of the movie “American Violet,” and an ACLU lawsuit. Here’s the description from the book’s introduction:
In the economically troubled town of Hearne, Texas, 27-year-old criminal informant Derrick Megress wreaked havoc. In November, 2000, a federally-funded drug task force swept through the town arresting twenty-eight people, mostly residents of the Columbus Village public housing project. Megress, a suicidal former drug dealer on probation facing new burglary charges, had cut a deal with the local prosecutor. If he produced at least 20 arrests, Megress’s new charges would be dropped. He’d also earn $100 for every person he helped bust. One of his innocent victims was waitress Regina Kelly, mother of four, who steadfastly refused to plead guilty and take a deal for probation even as she sat in jail for weeks. Another target, Detra Tindle, was actually in the hospital giving birth at the time that Megress alleged that she had sold him drugs. A lie detector test finally revealed that Megress had lied–mixing flour and baking soda with small amounts of cocaine to fabricate evidence of drug deals. Charges against the remaining Hearne suspects were dropped, although several had already pleaded guilty.
Such stories are not aberrations; drug task forces are large-scale users of criminal informants in which the risks of fabrication are high. Massachusetts, for example, reports that in 2005-2006 its federally-funded drug taskforces relied on over 2000 confidential informants who made 45 percent of the taskforces’ controlled buys.
Snitches bolster weak cases
The most egregious cases of informant unreliability occur where an entire case turns on the testimony of a single compensated snitch. The dangers of wrongful conviction in this scenario are so obvious that numerous states have or are considering corroboration requirements. But informant testimony can produce wrongful convictions in another way, and that is by making weak cases look stronger than they are. For example, Florida Today ran a story last week (updated link) on the probable innocence of Gary Bennett. Bennett was convicted based on a now-discredited dog sniff expert and the testimony of a jailhouse snitch. Similarly, in the high profile case of Cameron Todd Willingham, the Texas man was convicted and executed for arson based on a combination of poor forensic science and the testimony of a jailhouse snitch who later recanted. See previous post.
Such cases are not accidents. Jailhouse snitches are infamous for fabricating information about homicide and other high-profile cases, and offering the information to law enforcement without any solicitations or promises on the part of the government. In other words, the very existence of the case generates the bad evidence because of the general expectation in the offender population that such information will eventually be rewarded. This snitch testimony, however, makes the original case look stronger than it really is. This problem cannot be solved by corroboration requirements, since the informant’s information is automatically “corroborated” by the pre-existing weak evidence. Yet another reason to restrict the use of jailhouse informant testimony.