A Texas legislator has just introduced a new bill, H.B. 189, that would bar the use of compensated criminal informants in capital cases. H.B. 189 would make informant and accomplice testimony inadmissible if “the testimony is given in exchange for a grant or promise by the attorney representing the state or by another of immunity from prosecution, reduction of sentence, or any other form of leniency or special treatment.” In effect, the bill embodies the sensible idea that paying criminals for their testimony is simply too unreliable to be used in death penalty cases. The Texas Tribune ran this story: Bill Would Restrict Informant Testimony in Death Cases. The bill would also bar the use of alleged confessions made to jailhouse snitches unless the confessions are corroborated by electronic recordings. In many ways Texas has been on the forefront of this issue–the state already has drug and jailhouse snitch corroboration requirements. See this post: Texas requires corroboration for informant witnesses.
Reliability
Supreme Court begins debating informant unreliability
The Supreme Court released an order today denying certiorari in Cash v. Maxwell, formerly Maxwell v. Roe, an important Ninth Circuit decision discussed in this previous post. Usually the Court does not explain cert denials, but this case generated a heated debate between Justice Sotomayor, who supported the denial, and Justices Scalia and Alito who thought the Ninth Circuit’s decision should have been overturned. See SCOTUSblog post here, and L.A. Times story here.
Today’s decision is important for a number of reasons. First, it shows that the Justices have joined numerous state and federal legislators in recognizing the problem of informant unreliability. Informant-based wrongful convictions are increasingly frequent in the courts and in the news, and many states have taken up the issue. See Legislation Section of the main website. Although the Court did not answer the question today, it’s a sign of the times that the Justices are arguing about it.
Maxwell also shows how the legal debate over informant use is becoming less about procedure and more about substantive questions of reliability and innocence. Until recently, most informant litigation has been a fight over disclosure: the information that the government must disclose regarding its use of compensated criminal witnesses. The Maxwell case and the Sotomayor/Scalia debate squarely confront the substantive question of unreliability: how unreliable can compensated criminal witnesses be before the law restricts their use? Or to put it another way, how high is our tolerance for the likelihood of wrongful conviction? Even Justice Scalia concluded that the informant in Maxwell’s case was a “habitual liar,” and that there were reasons “to think it likely that he testified falsely” at Maxwell’s trial. The Ninth Circuit took the next step, holding that the Due Process Clause does not permit such clearly unreliable evidence to be used. As a result of today’s cert denial, this holding stands.
Finally, Justice Sotomayor pointed out that the Ninth Circuit relied on “an avalanche of evidence” that the informant in that case was unreliable. The existence of such evidentiary avalanches is a relatively new phenomenon. Thanks to the innocence movement and numerous new studies (see Resources & Scholarship section on the main website), courts and litigators have more evidence than ever before regarding the unreliability of criminal informants. These new data will surely change how courts consider such questions in the future.
9th Circuit reverses death penalty because of lying informant
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.
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.