Huffington Post offers this comprehensive retelling of the entire Orange County snitch scandal, from the first revelations all the way to Scott Dekraai’s 8 life sentences, with reactions from the victims’ families: A Mass Shooting Tore Their Lives Apart. A Corruption Scandal Crushed Their Hopes For Justice.
Jailhouse Informants
Experiments on the impact of inducements
Scholars at the University of Arizona Law School have published a paper entitled “Incentives, Lies and Disclosure,” 20 U. Pa. J. Con L. 33 (2018). They conduct a number of behavioral experiments and conclude that incentivized witnesses like jailhouse informants are more likely to lie, and that even when potential jurors are told about the incentives, they still believe the witness. Here is the abstract:
Prosecutors can force witnesses to testify and use perjury prosecutions to hold them to the provable truth. More controversially, prosecutors also offer witnesses inducements for favorable testimony, including leniency, immunity, and even cash. This ubiquitous behavior would be illegal as witness bribery, except for a longstanding tradition of sovereigns using this power, which legal doctrine now reflects. A causal analysis shows that even if prosecutors use this power only in good faith, these inducements undermine the epistemic value of witness testimony.
Due process requires, and legal doctrine assumes, that when such inducements are disclosed to the jury, they will discount the witness testimony accordingly. However, juries’ success in doing so is an empirical question. We conducted three randomized experiments with 1,000 human subjects in roles of witnesses and jurors deciding vignettes based on real cases. We find that incentives have large effects on witnesses, allowing prosecutors to routinely procure favorable testimony regardless of its truth. Yet, disclosure has no detectable effects on either witnesses or jurors.
We discuss two potential reforms. First, courts could borrow from the practice with expert witnesses and use the current rules of evidence to conduct Daubert-like pretrial screening of incentivized witnesses for reliability. We frame the appropriate counterfactual question about whether the incentives would cause a witness to give the same testimony even if it were false. Second, we present the novel suggestion that prosecutors could decide whether to offer benefits to a witness based on whether she will testify to material information, but without knowing whether the information is favorable to the Government. These mechanisms may preserve the value of incentives to produce information, while minimizing false testimony.
Texas passes strong new informant disclosure law
At the recommendation of the Timothy Cole Commission, Texas has passed strong new legislation requiring the government to collect a range of data on its jailhouse informants, including prior testimony and benefits, and to turn that data over to the defense. The bill is here.
And here is the New York Times Editorial Board’s glowing review of the new law, Texas Cracks Down on the Market for Jailhouse Snitches, calling it “the most comprehensive effort yet to rein in the dangers of transactional snitching.” The Times also notes, however, that prosecutors are supposed to turn over such evidence anyway and that further reforms are called for, such as reliability hearings and barring informants in capital cases.
Prosecutor in Willingham case tried for ethics violation, and acquitted
Originally posted May 3: In a rare display of potential discipline, the prosecutor who misused a jailhouse informant against Cameron Todd Willingham–John Jackson–is on trial for ethics violations. “Specifically, the state’s lawyers contend that Jackson made a deal with a jailhouse snitch who agreed to testify against Willingham and then hid that deal from Willingham’s defense attorneys — a clear violation of both law and ethics. They say that Jackson took extraordinary measures over the next two decades to conceal his deceitful actions.” Here is the story from The Intercept.
Update May 13: The jury acquitted prosecutor John Jackson. From The Marshall Project: “By an 11-to-1 vote, a Navarro County jury rejected claims by the State Bar of Texas that Jackson made false statements, concealed evidence favorable to Willingham’s defense and obstructed justice.”
Barry Scheck, Innocence Project Founder, on informant reform
Washington State is considering legislation that would strengthen the government’s obligation to disclose information about its criminal informants. Barry Scheck, Founder of the Innocence Project, writes about how important this legislation is in Justice can be tainted by the use of informants’ testimony.