Yesterday in Sivak v. Hardison, the Ninth Circuit reversed yet another death sentence based on a lying jailhouse informant and the “State’s knowing presentation of perjured inmate testimony.” See also this post regarding Maxwell v. Roe. In Sivak, the prosecution used two jailhouse informants–Duane Grierson who described himself as a “chronic liar,” and Jimmy Leytham, who falsely testified that he did not expect any rewards for his testimony. The Ninth Circuit concluded that these two unreliable witnesses provided the only direct evidence of Sivak’s personal participation in the homicide and that therefore his capital sentencing violated due process.
Reliability
California passes jailhouse informant corroboration law
Governor Brown just signed important new legislation requiring corroboration before a jailhouse informant can testify. SF Chronicle story here: Law requires corroboration of cellmate’s testimony. California joins Texas, Illinois, Massachusetts, Idaho, and several other states that require safeguards to counteract the well-documented unreliability of jailhouse snitch testimony. Here is part of the bill:
A jury or judge may not convict a defendant, find a special circumstance true, or use a fact in aggravation based on the uncorroborated testimony of an in-custody informant.
An “in custody informant” is defined as: “a person, other than a codefendant, percipient witness, accomplice, or coconspirator, whose testimony is based on statements allegedly made by the defendant while both the defendant and the informant were held in within a city or county jail, state penal institution, or correctional institution.” Full disclosure: I testified in support of this legislation.
St. Petersburg police to review informant policies after officer scandal
Police have nearly unfettered discretion when creating and handling informants. That authority is coming under scrutiny in St. Petersburg, Florida, after the FBI arrested Detective Anthony Foster for extorting thousands of dollars in cash and goods from his informant. Story here: St. Petersburg police to re-evaluate policy on confidential informants:
The FBI’s criminal complaint against Foster depicts a detective with near unlimited discretion in his dealings with an informant. Foster texted and called the informer to demand payments in cash or gifts, such as a widescreen TV, Nike shoes and groceries. The FBI alleges Foster made clear in recorded conversations that, in exchange, he would get a reduced sentence for the informant, who had been arrested on a grand theft charge in Hernando County. . . .
The criminal complaint against Foster suggests that there are either few regulations in place or that they aren’t always followed. For example, in Foster’s effort to convince the assistant state attorney that the informant had helped him solve some cases, Foster had his sergeant call to corroborate his informant’s value. The supervisor, according to the complaint, told the assistant state attorney that the informer helped in major homicide cases and was “more of a benefit out of jail rather than in jail.” Later, the sergeant faxed a list of four major investigations — including a March 23 murder — in which the informer assisted. When the FBI showed the informer the list, however, the informer denied assisting in any of those cases.
New Yorker article on out-of-control FBI informant
Great article in this week’s New Yorker by Evan Ratcliff, entitled The Mark: The FBI needs informants, but what happens when they go too far? It’s about a longtime FBI/DEA informant named Josef Meyers who worked under the name Josef Franz Prach von Habsburg-Lothringen, claiming to be descended from Austrian royalty, who early in life was diagnosed with a violent “unspecified psychosis” and “latent schizophrenia.”
The story focuses on one particular ‘mark,’ a former district attorney named Albert Santoro, who eventually pled guilty to “operating an unlicenced money-transmitting business,” and who maintains that he was entrapped by von Habsburg into appearing as if he was engaged in money laundering. The piece includes jaw-dropping details about von Habsburg’s operations, such as thousand dollar dinners at fancy restaurants designed to lure investors, and how he and his wife lived lives of staggering luxury and excess. The story also details the FBI’s efforts over the years to protect its informant, including tens of thousands of dollars in payments, helping him avoid punishment for his own drug dealing and fraud, and even arresting a defense team’s investigator when he got too close. Von Habsburg is currently in prison for failure to pay child support. A classic tale of a criminal informant who took the system for a wild ride, much like this one.
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.