Wednesday, October 24, 2012

The Unreliability of Prisoner Informant Testimony

A presentation given by Alice Lynd for a panel on wrongful convictions at the Cleveland Marshall School of Law on October 22.

The Unreliability of Prisoner Informant Testimony
by Alice Lynd[1]

Opening remark: 
            Rather than the anatomy of wrongful convictions, my remarks have more to do with the physiology of wrongful convictions. I have chosen some examples from the investigation and trials that followed what is known as the “Lucasville riot” in 1993 to illustrate how informant testimony functions and can result in wrongful convictions.
1.  Testimony in return for rewards is unreliable.
Testimony by prisoner informants, especially informants who receive rewards in exchange for their testimony, is inherently unreliable. It is particularly unreliable when, as at Lucasville, there was no physical  evidence linking any defendant[2] to any of the ten murders that took place during those eleven days. In such high profile cases, the prosecution can offer immunity from prosecution, plea bargains with dropped charges or reduced sentences, protection while in prison, and letters to the parole board, in exchange for testimony that leads to convictions.
2.  An example of perjured testimony by a jailhouse informant.
We begin with an example of perjured testimony by a jailhouse informant who testified against Derek Cannon.
            Derek Cannon was tried for the murder of an inmate on the first day of the Lucasville disturbance. Cannon’s defense was that he was on the recreation yard when the uprising began, he returned to L-block briefly, but he did not enter L-6 where the victim was killed.
            At Cannon’s trial, the informant testified that Cannon had confessed not only that he murdered the inmate, but that Cannon had also tortured and murdered the hostage officer who was killed several days later. This informant was the last witness at Cannon’s trial. According to Cannon’s attorney, the judge said the jailhouse informant impressed some jurors as to what kind of a person Cannon was.
Derek Cannon could not have been present in L-block on April 15 when the officer was killed. Contemporaneous records show that Cannon was taken off the recreation yard during the early hours of April 12, and he was transferred to another prison a few days later. He is serving a sentence of 26 years to life.
3.  Accomplice testimony is not only unreliable but persuasive.
            Testimony by an accomplice is not only unreliable but persuasive. He knows what happened. He can answer any question. He can simply change the names of who did what, and shift the blame away from himself.
4.  Example of false testimony in return for a plea bargain.
Here is an example of false testimony in return for a plea bargain.
Stacey Gordon was implicated in the murder of one inmate, assaulting and attempting to murder another inmate, and assaulting two correctional officers. In a plea agreement, Gordon pled guilty to assaulting the two correctional officers; other charges were dropped.
On the day he took his plea bargain, Gordon was asked and answered, under oath:
Q. Do you know Keith Lemore [sic]?
A. No . . . .
            Q. Did you see Keith Lemore in the L-6 block in the early hours of the riot at Lucasville?
            A. No.[3]

But nine months later at the trial of Keith LaMar, Gordon claimed that he watched as LaMar directed the death squad in L-6.[4] Gordon was paroled in 2007; LaMar is sentenced to death.
Did Gordon see LaMar or did he not?
What happened to the principle articulated by the Supreme Court of the United States that, because death is different in its severity and finality, heightened reliability is of vital importance in capital cases?[5]
5.  Example of how accomplices are induced to become witnesses for the prosecution.
How were accomplices induced to become witnesses for the prosecution?  Here are a couple of examples.  
The investigator explained to the prospective witness: “We got this sliding scale.” If the prisoner says, “I ain’t saying nothing,” the investigator would recommend that he be charged with Aggravated Murder.
“Are we going to go to the prosecutor and say, ‘Hey, we think we ought to fry this guy’.” Or, do we say, “he was forced to do it.”
Do we say, “murder without any specifications, and a sentence to run concurrently” with whatever he was already serving?
The prisoner asked the investigator, how could he testify while in prison with the men he would testify against?  The investigator responded, “You won’t.” The investigator would tell the prosecutor, “He’ll testify if we can guarantee his protection.”[6]
This prisoner was convicted of participation in murder of three prisoners on the first day of the riot. Pursuant to a plea bargain, he is serving fifteen years to life to be served concurrently with previous sentences; and the prosecutor sent a letter to the parole board stating that what he had done was no worse than what was done by another prisoner who had already been paroled.
            George Skatzes was offered and rejected a plea bargain. He claims he is actually innocent. Anthony Lavelle was one of the principal witnesses against George Skatzes. At a sidebar during the Skatzes trial, the prosecutors explained to the judge, referring to Anthony Lavelle, “[T]he state told him, you are either going to be my witness, or I’m going to come back and try to kill you. He made his decision [to cooperate] based on that.”[7]
6.  The State’s justification for offering plea bargains in exchange for testimony.
            The State of Ohio makes no apologies for its use of plea bargains in exchange for testimony. The then-director and assistant director of the Ohio Department of Rehabilitation and Correction published an article in which they asserted that the key to winning convictions was to target a few gang leaders and convince them to accept plea bargains. They wrote:
Thirteen months into the investigation, a primary riot provocateur agreed to talk about Officer Vallandingham’s death. He later received a sentence of 7 to 25 years after pleading guilty to conspiracy to commit murder. His testimony led to death sentences for riot leaders Carlos Sanders, Jason Robb, George Skatzes, and James Were. After that, fellow gang members began to seek deals of their own.[8]

That “provocateur” was Anthony Lavelle.
            The following statements are taken from closing argument by Prosecutor Hogan at the trial of George Skatzes.
                        Anthony Lavelle [testified]: [“]I’ll tell you why I’m here; I was on my way to death row.[”] . . . Anthony Lavelle doesn’t have any problem understanding what he did and where he was going. . . . The State cut a deal with him, that’s true.
                        . . . Mr. Skatzes had his opportunity and he chose not to take it. Had Mr. Skatzes taken it . . . Mr. Skatzes . . . would be up there on the witness stand testifying and Mr. Lavelle could be sitting over there. I make no apologies for that.[9]
            . . . [B]y the nature of the crime the State is going to have to cut deals with people who have seen things, who have done things. . . . [10]

7.  Recognition of the problem by the Supreme Court of the United States.
The Supreme Court of the United States has recognized that informant testimony is suspect. More than a hundred years ago, the Supreme Court declared that accomplice testimony “ought to be received with suspicion, and with the very greatest care and caution, and ought not to be passed upon by the jury under the same rules governing other and apparently credible witnesses.”[11]
Sixty years ago, Supreme Court Justice Jackson wrote, “the use of informers, accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility.”[12]
8.  Recognition of the problem by the Ohio legislature.
The Ohio legislature has also acknowledged the unreliability of accomplice testimony. When an alleged accomplice testifies against a defendant who is charged with complicity, the Ohio Revised Code requires the jury to be instructed, “the claimed complicity of a witness may affect his credibility and make his testimony subject to grave suspicion and require that it be weighed with great caution.”[13]
9.  A warning does not solve the problem.
However, warning the jury is not sufficient. Jurors find it difficult to assess the credibility of a typical prisoner informant. There is a grave danger that the jury will underestimate the unreliability of such testimony. Jurors often assume that the prosecution would not have brought the case if the defendant were not guilty.
10.  Proposed solutions to the problem.
            Because of the unreliability of informant testimony, the House of Delegates of the American Bar Association adopted a resolution in 2005, urging “federal, state, local, and territorial governments to reduce the risk of convicting the innocent, while increasing the likelihood of convicting the guilty, by ensuring that no prosecution should occur based solely upon uncorroborated jailhouse informant testimony.”[14]      
            More specifically, the California Commission on the Fair Administration of Justice declared in 2006:
A conviction can not be had upon the testimony of an in-custody informant unless it shall be corroborated by such other evidence as shall independently tend to connect the defendant with the commission of the offense . . . . Corroboration of an in-custody informant cannot be provided by the testimony of another in-custody informant.

11. Conclusion.
            In conclusion, unless there is independent objective corroborating evidence linking the defendant to the offense, convictions based on testimony by accomplices and other prisoner informants should be found insufficient to support a conviction.
            Because there was no independent objective corroborating evidence linking any suspect to any victim during the Lucasville uprising, there is a high probability that some of the Lucasville defendants were found guilty of offenses they did not commit.

[1] Alice Lynd is the author of a forthcoming law review article, “Unfair and Can’t Be Fixed: The Machinery of Death in Ohio,” University of Toledo Law Review (Fall 2012), where there is fuller discussion of the use of accomplice and prisoner informant testimony in death penalty cases.

[2] Testimony by lead investigator, Howard Hudson, State of Ohio v. George Skatzes, Case No. 94-CR-2890 and -2891 (Court of Common Pleas, Montgomery County, Transcript at 1913.
[3] “Statement of Stacey Gordon,” September 8, 1994, taken by Court Reporter Deborah S. Adkins, and filed in State of Ohio vs. Stacey Gordon, Case Nos. 94 CR 127, 94 CR 153, 94 CR 188 (Court of Common Pleas, Scioto County, Ohio) (emphasis added).

[4] State of Ohio v. Keith LaMar, Case No. 94 CR 136 (Court of Common Pleas, Lawrence County, Ohio), Transcript at 2612, 2654; State of Ohio v. Timothy Grinnell, Case No. 94 CR 11-6418 (Court of Common Pleas, Franklin County, Ohio), Transcript at 324, 367.

[5] See Woodson v. North Carolina, 428 U.S. 280, 303-05 (1976); Gardner v. Florida, 430 U.S. 349, 357-58 (1977): Beck v. Alabama, 447 U.S. 625, 637-38 (1980).

[6]  Ohio State Highway Patrol Interview #945 (n.d.)

[7] State v. Skatzes, Transcript at 4047.

[8] Reginald A. Wilkinson and Thomas J. Stickrath, “After the Storm: Anatomy of a Riot’s Aftermath,” Corrections Management Quarterly¸ Winter 1997, at 21.

[9] State v. Skatzes, trial transcript at 5751.

[10] Id. at 6101.

[11] Crawford v. United States, 212 U.S. 183, 204 (1909).

[12] On Lee v. United States, 343 U.S. 747, 757 (1952).

[13] Ohio Revised Code § 2923.03(D).

[14] (Feb. 14, 2005) (emphasis added). The report in support of this resolution, including references to pertinent studies, cases and law reviews, may be found at < daily/108B.doc>.

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