Snitching

Criminal Informant Law, Policy, and Research

Innocence

Fernando Bermudez exonerated–informant found to have lied

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Cleared of murder charges after serving 18 years, Fernando Bermudez was freed on Friday. See NYT story here and my

previous post. Four witnesses recanted their testimony, stating that they had been pressured by the government into identifying Mr. Bermudez as the shooter. The main witness, Efraim Lopez, testified falsely under a cooperation agreement guaranteeing that he would not be charged with any crimes, even though he was centrally involved in the shooting. Judge Cataldo concluded that the government either knew or should have known Lopez was lying. Judge Cataldo’s opinion is available here. Although the government concedes that its main witness Lopez perjured himself at trial, it has announced that it intends to appeal.

Supreme Court hears case on prosecutorial immunity

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Last week the Supreme Court heard oral argument in an important snitching case: Pottawattamie County v. McGhee. Two prosecutors are being sued for fabricating evidence — essentially pressuring a criminal informant until he came up with the story they wanted and then using that story at trial. The issue is whether they have absolute immunity, as prosecutors typically do for trial-related decisions, or whether they were acting more like investigators and therefore would only have qualified immunity from suit. Radley Balko over at Reason has posted this comprehensive discussion of the case and oral argument. For defendants who have been convicted based on fabricated evidence, the only remedy to which they are typically entitled is the overturning of their conviction. See this post: Judge finds prosecutorial misconduct in permitting false informant testimony. A finding that prosecutors who fabricate evidence might be personally liable would significantly alter the dynamic between informants and the government.

Yet another snitch exoneration

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Yesterday’s New York Times, “Unyielding in His Innocence, Now a Free Man,” reports on the exoneration of Dewey Bozella. Mr. Bozella spent 26 years in prison for a murder charge that the state now says it has insuffient evidence to prove. From the Times:

The prosecution relied almost entirely on the testimony of two men with criminal histories, both of whom repeatedly changed their stories and both of whom got favorable treatment in their own cases in exchange for their testimony.

There was no physical evidence linking Mr. Bozella to the killing. Instead, there was the fingerprint of another man, Donald Wise, who was later convicted of committing a nearly identical murder of another elderly woman in the same neighborhood.

Mr. Bozella was eventually acquitted due in part to the efforts of the Innocence Project. On December 2, The Innocence Project will be co-sponsoring a discussion of my book in conjunction with Cardozo Law School.

Huffington Post on jailhouse snitches and exonerations

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Today’s Huffington Post reports on the recent death row exonerations of Yancy Douglas and Paris Powell–both men were convicted based solely on in-custody or “jailhouse” snitch testimony. The post was written by John Terzano, president of the Washington D.C.-based Justice Project, which has produced a report on jailhouse snitch use and policy recommendations. Here’s an excerpt from the post:

These exonerations highlight the power prosecutors have in securing convictions by utilizing in-custody informant testimony, even when no physical evidence links a defendant to the crime. Testimony by in-custody informants or “jailhouse snitches” as they are often referred, is a leading cause of wrongful convictions. With little to lose, jailhouse snitches have great incentives to provide false information to prosecutors in exchange for leniency or other forms of compensation. Deals that are made between prosecutors and jailhouse snitches do not often come to light when a jury has to weigh the evidence is a case.

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.