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 <http://www.abanet.org/leadership/2005/midyear/
daily/108B.doc>.
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