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.
Jailhouse Informants
California informant bill passes out of committee
A bill that would improve recordkeeping and disclosure regarding jailhouse informants just passed out of the California Legislature’s Public Safety Committee. The bill would also cap certain informants benefits. Bill here and ACLU press release here.
I testified in support of the bill along with Bruce Lisker, who was wrongfully convicted of murder at age 17 based on jailhouse informant testimony, and spent 26 years in prison before he was exonerated. Here is Mr. Lisker’s testimony from today’s hearing:
“Honorable Assembly Persons, my name is Bruce Lisker. I am here to urge a YES vote on AB359. On March 10, 1983 my teenage world became a nightmare. I discovered my mother beaten, stabbed and left for dead on the floor of our Sherman Oaks home. It wasn’t long before a corrupt LAPD detective was, unbelievably, arresting ME for the attack. I was cast into the notorious “Snitch Tank” at L.A. County Jail, where I met a vile creature known as Robert Hughes, a morally bankrupt jailhouse informant with an extensive rap sheet and one overriding mission – to get out of jail.
After conning me into innocent conversation, Hughes told police I’d confessed to him. I was the fourth target of his lies inside of 18 months. Police fed him cigarettes and food, flew him in private LAPD aircraft – and my prosecutor got him sprung from prison months early.
Hughes’ lies, and the criminal justice system that encourages them, cost me more than twenty-six years of freedom and youth I can never get back. Had AB359 been the law of the land, my lawyer would have known that Hughes had a lengthy history of severe mental health issues, including documented psychotic breaks.
He was given inducements to investigate and testify against me, had unrecorded interviews with police about the case, and undue influence rewarded his lies with the thing he coveted most, his freedom. All this was hidden or misrepresented by police and prosecutors.
Evidence is clear – jailhouse informant testimony is a leading causes of wrongful conviction in America. As demonstrated by the recent outrage in Orange County, and investigations in at least five other California counties, this problem persists. Please vote YES on AB359. Society deserves no less.”
DOJ to investigate Orange County
The U.S. Department of Justice has announced an investigation–in conjunction with the U.S. Attorney’s Office of the Central District of California–into unconstitutional informant practices in Orange County. This is a welcome and important development. Below are links to stories, and to the original letter from former California Attorney General John Van de Kamp and U.C. Irvine Dean Erwin Chemerinsky, requesting that DOJ intervene:
Informant expert testimony held admissible in Connecticut
The Connecticut Appellate Court has held that expert testimony on the general unreliability of jailhouse informants is admissible, and that a trial court abused its discretion when it excluded a defense expert (me) in a trial in which the conviction depended on several jailhouse informants. The opinion is here: State v. Leniart. The discussion of the expert issue is in Part IV, beginning on page 42.
The opinion contains several key findings:
1. The Court “acknowledged the growing recognition by the legal community that jailhouse informant testimony is inherently unreliable and is a major contributor to wrongful convictions throughout this country.” (p. 43, quoting State v. Arroyo)
2. “Although credibility determinations ultimately must be left to the jury, expert testimony nevertheless is admissible if it can provide a jury with generalized information or behavioral observations that are outside the knowledge of an average juror and that would assist it in assessing a particular witness’ credibility. As long as the expert does not directly opine about a particular witness’ credibility or [] testify in such a way as to vouch indirectly for or bolster the credibility of a witness, the expert’s testimony would not invade the province of the jury to decide credibility and may be admitted.” (p.49)
3. An understanding of jailhouse informant culture, including the expectation of benefits and the lengths to which informants may go to procure and fabricate evidence, is not within the ken and understanding of the average juror (p. 50).
4. Expert informant testimony is similar to expert testimony regarding the unreliability of eyewitness testimony which is now widely viewed as admissible (p.51-52).
5. Generalized jury instructions may be insufficient to educate jurors regarding the dangers of informant unreliability, since in eyewitness cases “generalized jury instructions were not an adequate substitute for expert testimony” (p. 52).
Orange County prosecutors in scandal seeking judgeships
The Marshall Project is reporting that two prosecutors directly implicated in Orange County’s jailhouse snitch scandal are running for judicial office. From the story, ‘The Scandal-Singed DAs Who Wants to be Judges‘:
For the past year, the district attorney’s office in Orange County, Calif., has been battling the fallout from revelations of a decades-old scheme of planting secret informants near defendants’ jail cells…Now two longtime prosecutors from that same office — Michael Murray and Larry Yellin — are running for Superior Court judgeships, aiming to take the bench alongside judges who have called them out for misconduct. Neither prosecutor has been formally sanctioned in the scandal. But both are supervisory-level district attorneys in an office that a judge recently ruled “habitually ignored the law over an extended period of time.” Both, by their own admission, have withheld evidence. And both are considered shoo-ins by the local press.