Snitching

Criminal Informant Law, Policy, and Research

Innocence

New Yorker Article–Of Experts and Snitches

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In this extensive New Yorker article, reporter David Grann tells the story of how Texas prosecuted and executed Cameron Todd Willingham for the alleged arson murder of his three children. Willingham always insisted on his innocence, and recent forensic evidence indicates that the fire was in fact an accident. A Texas government commission is reviewing the case–as Grann puts it, if the commission concludes that Willingham did not set the fire, “Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the ‘execution of a legally and factually innocent person.'”

There were two controversial kinds of evidence used at Willingham’s trial. The first and most important was the state expert’s opinion that the fire was intentionally set. The second was the testimony of Johnny Webb, a jailhouse snitch with drug and mental health problems, who was hoping to “get time cut” off his robbery and forgery charges and who testified that Willingham confessed to him. Eight years after the trial, in 2000, Webb recanted his testimony, but within months he recanted again. Here are a few excerpts from the story describing Webb.

Not long after Willingham’s arrest, authorities received a message from a prison inmate named Johnny Webb, who was in the same jail as Willingham. Webb alleged that Willingham had confessed to him . . . During Willingham’s trial, another inmate planned to testify that he had overheard Webb saying to another prisoner that he was hoping to “get time cut,” but the testimony was ruled inadmissible, because it was hearsay. . . . Years later, in 2009, reporter David Grann interviewed Webb. After Grann pressed him, Webb]said, “It’s very possible I misunderstood what he Willingham said.” Since the trial, Webb has been given an additional diagnosis, bipolar disorder. “Being locked up in that little cell makes you kind of crazy,” he said. “My memory is in bits and pieces. I was on a lot of medication at the time. Everyone knew that.” He paused, then said, “The statute of limitations has run out on perjury, hasn’t it?”

This is a good example of how jailhouse informant testimony can not only create bad cases but bolster weak ones. Because of the general understanding in the criminal system that informants get a break, informants may reach out to the government to offer testimony, making bad cases look better. In other words, the culture of snitching generates evidentiary “filler,” even if the government is not actively looking for any.

The New Yorker story is centrally about the role of bad forensic expertise, and it highlights similarities between experts and informants. Both are paid and controlled by one side, both have a stake in the outcome, and both offer testimony that is difficult to cross examine or rebut. Professor George Harris wrote an article on these similiarities entitled “Testimony for Sale: The Law and Ethics of Snitches and Experts,” in Pepperdine Law Review, in which he argues that experts and snitches alike should be subject to more rigorous controls and adversarial testing. In particular, he offers a proposal, on which I expand in my book, to create “defense informants,” i.e. informants who could testify for defendants and receive the same kind of benefits that informants can now receive only by testifying for the prosecution.

Troy Davis Gets a Hearing–Recantation Redux

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I posted the other day about how hard it is for defendants to get new trials when the witnesses against them have recanted. Yesterday, the Supreme Court took the unusual step of granting death row inmate Troy Davis a new hearing. Of the nine witnesses who testified that Davis shot and killed Officer Mark MacPhail in 1989, seven have recanted. Of the remaining two witnesses, one–Red Coles–is suspected of being the actual shooter. Here’s the NYT story .

While the Davis case is not ostensibly about snitching, it revolves around some classic dynamics associated with informant use and its unreliability. One recanting witness–Kevin McQueen–was in fact a jailhouse snitch who testified that Davis confessed to him. McQueen had worked several times before as a police informant and knew the value of providing information against other inmates. When Queen recanted, he explained that he had fabricated the confession based on jailhouse gossip and television reports. Here’s the excerpt from the original appeals brief:

Ex-inmate Kevin McQueen testified at Davis’ trial that Troy had confessed to him. McQueen had been a “snitch” in other prosecutions and his version of Troy’s “confession” differed wildly from established facts (e.g. Troy was eating breakfast at the Burger King in the morning). McQueen subsequently admitted, “[t]he truth is that Troy never confessed to me or talked to me about the shooting of the police officer. I made up the confession from information I had heard on TV. and from other inmate’s talk about the crimes. Troy did not tell me any of this.”

This tactic of fabricating other inmates’ confessions based on jailhouse talk and publicly available information was made famous by Leslie Vernon White, a Los Angeles jailhouse snitch. In 1989, White went on 60 Minutes and showed reporters how with a few phone calls from the jail he could get enough information to fabricate a confession that police and prosecutors would accept as true. The ensuing Los Angeles Grand Jury Investigation (link to the left) was a response to the White revelations.

Another important aspect of the Davis case that commonly occurs in informant cases is the “first-in-the-door” phenomenon, in which the first suspect to cooperate with police not only gets to direct attention away from himself but can fundamentally shape the official investigation. Red Coles is the man who several witnesses now identify as the real shooter. The day after the shooting, Coles and his attorney went to police and fingered Davis as the shooter–Coles became a witness against Davis at trial. As a result of Coles’s cooperation, police resources were directed at Davis. This happens all the time with informants, especially in complex fraud or drug cases–the first suspects to cooperate shape the entire investigation and make it more difficult to discover the truth. Former prosecutor Steven Cohen describes what happens when the government believes a witness who cooperates early:

It is a certainty that the information obtained from the cooperator will become part of the base of information utilized to evaluate future would-be cooperators. Moreover, the information will affect future questioning of witnesses and defendants; it will alter how investigators view the significance of witnesses and particular pieces of evidence; and it may taint the way the case is perceived by the prosecutors and agents. In other words, false information skews the ongoing investigation. The false information may prove critical to issues that have far greater import than whether to accept as true the proffer of another would-be cooperator. Rather, it might impact decisions regarding charges to be filed against other defendants, it might affect decisions related to an appropriate plea for a given defendant, and it might even influence whether the government decides to seek the death penalty. (Steven M. Cohen, “What is True? Perspectives of a Former Prosecutor,” 23 Cardozo L. Rev. 817, 825 (2002)).

Professional Prison Snitch Ring

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I recommend this recent feature article in Reason Magazine by Radley Balko, entitled Guilty Before Proven Innocent. It tells the mind-blowing story of an innocent family in Louisiana, Ann Colomb and her three sons, who were wrongfully convicted of drug trafficking based on the testimony of numerous prison snitches. The informants were part of an information-selling network inside the federal prison, in which inmates purchased files and photographs to help them fabricate testimony which they then marketed to prosecutors in order to get sentence reductions. A bunch of inmates got hold of the Colomb file, and told prosecutors that they would testify against the family. If it werent for a few chance encounters that revealed the scam, the Colomb family would still be in federal prison.

I like this story because it highlights some classic problems with criminal informants. It also illustrates the scale of the phenomenon–and its potential for massive miscarriages of justice– in ways that may be surprising to people unfamiliar with the daily workings of the criminal process.

As the story illustrates, criminal informants are a primary (and infamous) source of wrongful convictions. Check out the link to the Northwestern University Law School report entitled The Snitch System on the left. Second, there are a lot of them: the government planned to use dozens of prison snitches against the Colomb family, and presiding Judge Tucker Melancon indicated that the phenomenon was pervasive. Third, prosecutors rely heavily on them even when the government should be suspicious. The prosecutor in the Colomb case did not appear to know that his prison snitch witnesses were selling information to each other and then lying about it; rather, he took them at their word even though he knew they had massive incentives to lie. Perhaps most importantly, the story shows how snitching has become commonly understood as a way for suspects and inmates to game the system. The Louisiana snitch ring sold information for thousands of dollars inside and outside the prison. This business plan was a response to a central fact about the U.S. criminal process–that information and leniency are traded freely between offenders and the government without rigorous fact-checking. This case just took it to a new level.