Ohio prosecutors relied almost entirely on informant testimony in Greg's case and the other Lucasville Uprising cases. He's raising funds to hire a lawyer to support overturning his conviction on the clear basis that prosecutors illegally lied to the court about making deals with their lead witness, a prisoner informant named Lou Jones. Please share his story with any lawyers you know and ask them to contact Greg for more information on his case.
Government Snitches: Incentivized Witnesses Are the Leading Cause of Wrongful Convictions
by Dale Chappell
Every year, innocent people go to prison, or even death
row, because of government informants who lie to get a good deal in
their own criminal case. The problem, studies show, is the fact that
this horse-trading between the informants and the government is largely
informal, unregulated, and highly secretive. On top of that, the
informants hold all the cards, because they have valuable information
the government wants.
This motivates some prosecutors to bend whatever rules
there are to get what they want. This must change. There has to be
meaningful transparency with the government’s use of “incentivized
witnesses.” There must be some way to validate the information offered
by an incentivized witness who has every reason to game the system,
because the system in place is deeply flawed.
Overview of the Problem
Snitches have been around a long time. One of the earliest
recorded cases involving a jailhouse informant happened in 1819 in
Manchester, Vermont. Two brothers accused of killing their
brother-in-law were convicted and sentenced to death based on a
jailhouse informant’s testimony. Just before the brothers were hanged,
and as the snitch was walking out the jailhouse doors a free man, the
“dead” brother-in-law turned up alive and kicking in New Jersey.
Decades later, the Civil War saw tens of thousands of war
prisoners “flipping” in order to gain better treatment by their captors.
Some of them gave up information on their side’s war plans, while
others switched allegiance to the side of their captors. Legal
commentators say this proves that harsh treatment of prisoners promotes
the prisoner’s innate desire to appeal to authorities in power over them
to gain more favorable treatment. Not much has changed today in this
respect.
The government’s use of informants became a formal part of
law enforcement during the Prohibition era in the 1920s, when the
Bureau of Alcohol, Tobacco, and Firearms switched to using entrapment
and informants to catch gun and alcohol smugglers, making snitching an
integral part of the criminal justice system.
Informant use exploded, however, in the 1970s, when
President Richard Nixon declared a “war on drugs,” and the government
used the same techniques of entrapment and informants to bust suspected
drug offenders on a massive scale. The next presidential term led by
Ronald Reagan ramped up the war on drugs by creating harsh mandatory
minimum sentences for drug offenders, which could be avoided only if the
defendants cooperated with the government by snitching on their
confederates. The government’s targets weren’t drug kingpins, but
low-level grunts who would flip and give law enforcement information on
the higher ups in the organization. Faced sometimes with mandatory life
in prison, these low-rung players were forced into a situation where
they had no choice but to cooperate, even if it meant they had to make
up stories.
Informants have become law enforcement’s “tool of choice,”
especially in drug enforcement. While facts and figures are closely
guarded secrets, the limited data that is publically available about
drug informants show that about 60 percent of drug defendants cooperate
in some way in exchange for reduced charges or sentences.
“Often, in DEA [Drug Enforcement
Administration], you have agents who do little or no follow up” in drug
cases, one prosecutor complained. “So when a cooperator comes and begins
to give you information outside of the particular incident, you have no
clue if what he says is true,” he said. “It’s bizarre,” another said.
Another problem is that informants offer information that
law enforcement often cannot verify as true. When an informant testifies
for the government before a jury, the specific details are usually
known only to the informant, which gives the appearance that the
informant has “inside information.” This bolsters the informant’s
credibility with the jury, and proving that the informant’s information
is false is nearly an impossible feat for a defendant.
Government witnesses lying on the stand is nothing new,
but it is how and why they lie that’s changed, Loyola Law School
professor Alexandra Natapoff said in her study, “How Snitches Contribute
to Wrongful Convictions.” Prosecutors are heavily invested in the
informant’s story to make their case and thus have no real incentive to
check a lying informant, she said. This “marriage of convenience”
created by the interests of the prosecutor and informant benefits both
parties, with an innocent person sometimes going to prison or the death
chamber.
Natapoff also notes that police and prosecutors become
heavily invested in their informants’ stories and often lack the
objectivity needed to step back and see when their sources might be
lying. They begin to believe the lies themselves.
Studies also have shown that false testimony by government
witnesses cause more wrongful convictions than the next two leading
causes—erroneous eyewitness identification and false or coerced
confessions—combined.
In a study by the University of Alabama psychology
department, mock jurors were unable to detect the coercive nature of
confession testimony, and more importantly, they gave undue weight to an
informant’s confession testimony in determining guilt. The study’s
authors concluded that “if jurors cannot perceive the difference between
an honest and dishonest cooperating witness there is grave potential
for such testimony to lead to wrongful convictions of the innocent.” In
stating the obvious, the researchers observed that this creates a
“substantial problem for the criminal justice system.”
When an informant’s testimony is the sole evidence to
support a conviction, “the integrity of the system is at stake,”
Natapoff said. She observed that the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals,
509 U.S. 579 (1993), placed a requirement on the courts to evaluate the
reliability of expert witnesses because they can be “both powerful and
quite misleading.” However, there is no such requirement for an
incentivized witness testifying about unsubstantiated facts on behalf of
the government.
What is an Incentivized Witness?
An incentivized witness is someone who
testifies on behalf of the government against another person or group in
exchange for an expected benefit. This benefit may include favorable
treatment in the person’s own criminal case, money, or other goods or
consideration. This, however, does not include citizens who come forward
on their own with information about a crime, even if for a reward.
These people are known as “good Samaritans.” We are not at all dealing
with good Samaritans when it comes to incentivized witnesses.
The term “incentivized” means “a motivation or reason for
doing something.” Incentives offered to government witnesses have
included reduced sentences, cash, a chance to spare friends or family
from criminal charges, or any other deal the government offers for the
witness’ testimony.
The term “witness,” also referred to as “informant” in
this context, means someone who provides information or testimony in
exchange for an incentive. Though not limited to only criminal suspects,
by far the most common government informant is the “jailhouse
informant,” who is a person facing criminal charges or serving a prison
sentence who wants a reduced sentence or charges dropped in exchange for
his information against a fellow prisoner. The State of Alaska, for
example, defines “informant” as “someone who provides evidence against
someone else for money or to escape or reduce punishment for [their] own
misdeeds or crimes.” The labels “incentivized witness” and “informant”
are often used interchangeably.
The testimony offered by an incentivized witness about
what a criminal defendant said or admitted to is called a “secondary
confession,” which is defined as “evidence provided by someone other
than the suspect and purported to be direct information from the
suspect.” It is this secondary confession that’s the product the
informant sells and for which the government barters.
“Informants are not the most reliable people around,” Orange County, California, District Attorney Tony Rackauckas told 60 Minutes.
When the host asked Rackauckas about a particular informant popular
with his office, he said, “I think you should assume you’re talking to
an informant. And if he’s talking, he’s probably lying.” Prosecutors
know that the product they are buying has defects. But apparently they
don’t mind.
Types of Incentivized Witnesses
Snitches come in all shapes and sizes, and their various labels come from their position in the grand scheme of the proceedings.
The “jailhouse snitch” is the prototypical incentivized
witness who informs law enforcement or jail staff about what another
prisoner has supposedly said or done, usually the result of an overheard
conversation or at the snitch’s prodding. This type of informant is
often involved in many wrongful convictions.
The “professional snitch” makes a living out of putting
people behind bars by selling information to law enforcement. Some
professional snitches, like Andrew Chambers discussed on p.6, have made
millions of dollars from the government testifying against defendants.
The “accomplice informant” is the codefendant of the
person the informant is offering information against in an effort to get
his or her own charges dropped or sentence reduced. These informants
are commonly used by law enforcement to ensnare others in the scheme,
especially the bigger fish.
Interestingly, the Department of Justice does not consider
accomplice witnesses as “confidential informants” to which rules
governing protection and payments apply. Instead, the government
considers these informants “cooperating defendant/witnesses” who have an
expectation of a reward for their services. Confidential informants,
unlike accomplice witnesses, also do not testify in court in order to
protect their identity in future cases.
The “calumniator” has traits of the other types of
informants but is distinguished by the desire to shift as much blame as
possible onto someone else in order to escape liability. It is not
uncommon for the calumniator to place blame on an innocent person, which
has resulted in many wrongful convictions.
Conditions and Agreements
The rewards to incentivized witnesses
can be substantial. They range from simple extras in prison, like a
better cell, to complete immunity from charges, including murder. The
U.S. Supreme Court has ruled that prosecutors have authority to provide
such incentives to informants in exchange for information.
In effect, the government is “buying” information from an
informant by using rewards as payment. An interesting question is how
this quid pro quo arrangement is treated under federal
anti-bribery laws, which says that “whoever ... directly or indirectly,
gives, offers, or promises anything of value” for a person’s testimony
may be punished by a fine or prison term.
In United States v. Singleton, 144 F.3d 1343
(10th Cir. 1998), a panel of the U.S. Court of Appeals for the Tenth
Circuit ruled that the government’s “payment” of rewarding an informant
for his testimony violates the federal anti-bribery statute. The panel
concluded that “the judicial process is tainted and justice cheapened
when factual testimony is purchased, whether with leniency or money.”
However, the government was granted a rehearing, and the Tenth Circuit, sitting en banc,
reversed the panel’s decision, ruling that the term ‘whoever’ under the
statute applies only to persons and that the government is an ‘entity,’
not a person under the statute. The Court concluded that the law does
not apply to prosecutors, and the U.S. Supreme Court declined to hear
the issue.
There are no checks on the power of a prosecutor to offer
an incentive or reward to an informant, except that the payment must not
be contingent on the outcome of the informant’s help. In other words,
the prosecutor cannot say, “I will let you out of jail only if your
testimony helps to convict this guy.”
Any “promise, reward or inducement” to a government
witness is considered exculpatory evidence that must be disclosed to a
defendant. In Giglio v. United States, 405 U.S. 150 (1972), the
U.S. Supreme Court held that by doing so, a criminal defendant is
afforded an opportunity to test the credibility of the government’s
witness by way of cross-examination, which satisfies due process under
the Constitution.
The past four decades, however, have proven Giglio to be more illusory than real. Promises by the government that are vague or open-ended bypass Giglio’s protections because they are not considered true “promises” under Giglio.
For example, the government’s assurance to its witness that it will
“make sure he’s taken care of” in exchange for his help is not a promise
requiring disclosure under Giglio. Such wink-and-nod type of
arrangements allow the government to claim no promise of a reward has
been made because it is technically true.
Boston College law professor Michael Cassidy said the Giglio ruling
allows prosecutors to fly below the radar, and because of this, a
defendant must still rely on the prosecutor’s honor or good faith.
However, if that could be counted on without fail, the Giglio ruling would not have been necessary in the first place.
In Hoffa v. United States, 386 U.S. 293 (1966),
the U.S. Supreme Court upheld testimony that was purchased by the
government because the accused was protected by “the established
safeguards of the American legal system.” Again, the Court reasoned that
the ability of the defendant to cross-examine the government’s witness
alone meets constitutional muster to allow purchased testimony by the
government.
The only limit on payments and rewards to government
witnesses is that it cannot be based on outcome. Otherwise, the only
limit, really, is what the prosecutor thinks the jury will believe
before it discredits the witness’ testimony. Studies show that juries
can handle quite a lot if they feel the defendant is guilty.
Snitches and Wrongful Convictions
In old England, snitches were common.
In the 1700s, Parliament provided for monetary rewards (“blood money”)
to snitches along with their release from prison in exchange for
information on cases. The case of Joshua Kidden in 1754 is a perfect
example of the problem. In that case, a member of a conspiracy to
collect blood money set up Kidden by placing a “stolen” coin on him
while another member claimed the coin was hers. After Kidden was found
guilty and executed, the conspiracy was revealed but all too late for
Kidden.
Snitches are the leading cause of wrongful convictions in
this country, particularly in capital cases, a 2004 Northwest University
study found. Researchers in that study discovered that nearly half of
the exonerations involved convictions that were based on snitches. Over
100 of those exonerations were for prisoners on death row.
The snitch system in this country has even created its own
slogans: “Don’t go to the pen; send a friend” and “If you can’t do the
time, drop a dime.” All joking aside, study after study and exoneration
after exoneration have shown wrongful convictions based on incentivized
witnesses is a real problem worth a hard look.
Criticism of Incentivized Witnesses
“Criminals are likely to say and do almost anything to get
what they want, especially when what they want is to get out of trouble
with the law,” U.S. Court of Appeals judge (and former prosecutor)
Stephen Trott said in his 1996 commentary on incentivized witnesses
titled “Words of Warning for Prosecutors Using Criminals as Witnesses.”
Not only do incentivized witnesses have the ability to fabricate
evidence, they can do so without sparking much suspicion because they
know the information they provide are difficult to corroborate.
Incentivized witnesses can manipulate their version of the
facts precisely because they know which facts are verifiable and which
are not. The lies by the incentivized witness are difficult to detect,
and the jury may infer from the details provided by the witness that the
facts are indeed true. And who would know? The prosecutor wants to
believe the witness, and the defense attorney does not believe him but
cannot prove he is lying.
There also is little to no oversight of a prosecutor’s use
of an incentivized witness. The U.S. Supreme Court has ruled that
prosecutors have “broad” power to administer criminal justice and
prosecute (or not) however they see fit. Retired U.S. District Court
judge John Gleeson remarked that “judges are in fact not well suited to
supervise criminal investigations, a process which is generally best
left to the executive branch.” This leaves the prosecutors themselves to
oversee their use of incentivized witnesses, a plan not without its
obvious weaknesses.
Because an offer of leniency from the prosecutor provides a
powerful incentive to cooperate, it also provides a powerful incentive
to lie.
There is also legitimate criticism of allowing criminals
to continue to commit crimes with full immunity while cooperating with
the government as incentivized witnesses. In the infamous case of James
“Whitey” Bulger, FBI handlers responsible for overseeing Bulger’s
actions purposely turned a blind eye to his criminal activity, which
allegedly included multiple murders while he was cooperating. Critics
say the FBI let Bulger’s crimes continue because he had inside
information on cases the government wanted badly enough to let a
dangerous criminal run free.
James Malloy was a killer who prosecutors set free in
exchange for information he supposedly had in some unsolved cases. After
prosecutors let Malloy go free as payment for this information, he
killed a 15-year-old boy in 2012, just after his release. The kicker is
that the information Malloy gave them was worthless.
Critics also point out that prosecutors routinely pile on
extra changes they can use as leverage to coerce someone to plead guilty
by offering to drop some of the charges. This charge bargaining system
cheapens the criminal justice system, some say, and is unfair to
defendants who might otherwise go to trial. Further compounding the
problem is that the plea agreements signed by those who are induced by
government threats of more charges include waivers of appeal and
collateral attack and even waiver of the ability to obtain law
enforcement records under the Freedom of Information Act. Some question
what the government is trying to hide by requiring such waivers.
Prosecutors have broad power to give witnesses payments in
exchange for their testimony. Criminal defendants, however, do not have
that luxury. For example, the Illinois Supreme Court suspended a
criminal defense attorney for 18 months for paying a witness $50 to
testify truthfully. Prosecutors, though, are not held to the same
standard, as made clear in the Tenth Circuit’s decision in Singleton and by every other circuit since that ruling.
Justification for Using Incentivized Witnesses
“Courts have countenanced the use of informants from time
immemorial,” Judge Learned Hand said in a 1950 case in support of the
use of government informants. He reasoned that using informants was
proper because “it is usually necessary to rely upon them or upon
accomplices because criminals will almost certainly proceed covertly.”
Certain crimes, such as political corruption and organized
crime, require “insider information” to expose the criminal activity.
Thus, limiting the government’s ability to use informants could deprive
the government of an important source of evidence critical in ferreting
out crime, some say.
Two primary reasons for using incentivized witnesses
exists. First, a cooperating witness’ testimony may strengthen a
marginal case against a more culpable or dangerous defendant. Second,
the cooperation might allow a prosecutor to solve a different, more
serious crime than the one faced by the witness.
Indeed, the commentators who recognize that the use of
government informants has its benefits in fighting crime also make clear
that the potential for problems outweigh the positives, at least
without better regulation and oversight of the process.
Real-life Examples of Problems with Incentivized Witnesses
Perhaps some real life examples of the damage caused by
incentivized witnesses would provide a clearer picture. With hundreds
(and possibly thousands) of wrongful convictions because of incentivized
witnesses, the following cases are by no means fully illustrative of
the harm done by lying informants.
• Andrew Chambers became a millionaire
working as a professional informant for the government. He made $4
million his first year as a snitch in 1984. Adjusted for inflation, that
comes to almost $9.5 million today. But Chambers’ career as a
government snitch came to a halt when the Department of Justice
discovered that he committed perjury in at least 16 cases, so the
government fired him.
Years later, Chambers became a DEA informant, again, in a
case in Phoenix, Arizona. When his involvement came to light and his
past lies were exposed, federal prosecutors were forced to dismiss all
the charges in the case. The DEA’s decision to use Chambers knowing that
he had lied in numerous cases in the past prompted a member of the
Senate Judiciary Committee, which has oversight authority over the DEA,
to push for a federal investigation into the use of Chambers. Before
Chambers was proven to be a liar on the stand, he had testified in at
least 280 cases for the government.
• Leslie Vernon White, another lying jailhouse informant,
admitted to reporters in 1989 that he consistently gave false
information to police and prosecutors in exchange for various benefits.
While in jail, White would pretend to be a cop on the phone to get
information on the cases of his fellow prisoners.
When White gave made-up confessions using the facts he had
gathered posing as a cop, prosecutors believed him because how else
would he know those facts unless the guy had confessed to White, they
concluded. White helped to convict numerous people using this scam.
Defense lawyers compiled a list of convictions involving White, which
showed that some people were even sentenced to death because of White’s
lies.
• In Spokane Valley, Washington, a drug deal/robbery gone
bad got worse when two men arrested for the robbery in 2009 concocted a
story that implicated three other men, Paul Statler, Robert Larson, and
Tyler Gassman. That story led to the conviction of the three, resulting
in combined prison sentences of 99-years.
Three years later, it was discovered that one of the two
men had earlier recanted his story when he found out he was not going to
be released for cooperating. He admitted that Statler, Larson, and
Gassman had nothing to do with the robbery. A Spokane County superior
judge threw out their convictions, finding that the recantation proved
the three men were actually innocent.
A lawsuit filed by the three was settled in 2017 for $2.25 million under the state’s wrongful conviction statute.
• Known as the “quintessential snitch,” Darryl Moore’s own
mother testified in court that she would never believe anything her son
said. The State of Illinois ignored her dire warning, used Moore as a
paid witness, and then released him, dropping his pending weapons and
drug charges, despite his lengthy criminal record as a habitual
offender.
Moore later recanted, admitting that he knew nothing about
the murder he testified about for the state, but before anything could
be done about Moore, he pulled an 11-year-old girl into an alley and
raped her. He was sentenced to 60 years in prison for that crime.
• Gary Gauger was sentenced to death in 1994 for
supposedly murdering his parents on their farm in Illinois a year
earlier. The primary evidence used to convict Gauger was the testimony
of a jailhouse snitch, Raymond Wagner, who said he heard Gauger confess
to the crime.
Though Gauger’s conviction was reversed on appeal in 1996
when the court found there was no probable cause for his arrest,
prosecutors continued to publicly insist that he was guilty. A year
later, two members of the Outlaws Motorcycle Gang were convicted of the
murders of Gauger’s parents after one of them was caught on tape
confessing to the crime.
In 2002, the Illinois governor pardoned Gauger based on his actual innocence.
• In Florida, Shabaka Brown was sentenced to death in 1974
for a murder a jailhouse informant says Brown committed. That informant
testified against Brown in exchange for leniency in his own case. Years
later, the informant admitted he made it up. Brown was exonerated from
death row 14 years later.
• A jury in Louisiana sent two innocent men, Albert
Burrell and Michael Graham, Jr., to death row in 1987 after a jailhouse
informant lied on the stand. The prosecutor knew the snitch had lied but
did nothing about it. Eventually, the prosecutor fessed up, and the two
men were released.
These real life examples of wrongful convictions show the disturbing problem with lying incentivized witnesses.
Real-life Examples of Bad
Cops and Prosecutors
Cops and Prosecutors
In addition to the problems caused by lying incentivized
witnesses, some cops and prosecutors cover up lies by their witnesses to
keep innocent people in jail. Why would they do such an outrageous
thing?
In 2014, prosecutors in the Orange County District
Attorney’s Office in California (“OCDA”) were caught lying about and
covering up a jailhouse informant program in which prosecutors would
place informants near certain defendants in the jail to gather
confessions and other incriminating evidence. When defense attorneys
started accusing the OCDA of withholding informant evidence, prosecutors
started dropping cases to hide their illegal jailhouse informant
program. Things only got worse.
OCDA prosecutor Tony Rackauckas dropped murder charges
three times in as many months in late 2014 after he was accused of
hiding his jailhouse snitch’s information from defendants. Earlier in
2014, Superior Court Judge Thomas Goethals ordered Rackauckas to
disclose his list of jailhouse informants in an attempted murder case.
Instead, to avoid exposing the jailhouse informant scandal at the OCDA,
Rackauckas dismissed the charges. This led to more dismissals rather
than complying with the judge’s order.
Months later, in 2015, Judge Goethals tossed the entire
OCDA office off a case—all 250 prosecutors—when prosecutors refused to
turn over jailhouse informant evidence in accused mass-murderer Scott
Dekraai’s case. Goethals found that OCDA prosecutors violated Dekraai’s
constitutional rights to confront his accuser by refusing to disclose
the jailhouse informant. To compound the problem, the Orange County
Sheriff’s Department (“OCSD”) denied it had a jailhouse snitch program
in its jails, even after documents revealed by defense attorneys clearly
showed that it did.
After a hearing in Dekraai’s case, Assistant Public
Defender Scott Sanders uncovered that OCSD mentioned a secret database
on informants—for the past 25 years. Goethals concluded at the hearing
that OCSD (and OCDA) intentionally lied and willfully withheld
exculpatory information from Dekraai. Goethals put the blame on
Rackauckas: “It apparently stems from Rackauckas’ loyalty to his law
enforcement partners at the expense of his other constitutional and
statutory obligations,” the judge said.
The case against Dekraai was nearly bulletproof: He freely
confessed to the multiple murders. Still, prosecutors jeopardized a
slam dunk first-degree murder case in order to hide its longtime,
illegal jailhouse informant program.
In late 2016, the U.S. Department of Justice launched a
civil rights investigation into both the OCDA and OCSD for the illegal
program. While the investigation was still pending, the State Bar of
California found by clear and convincing evidence that one OCDA
prosecutor, Sandra Lee Nassar, willfully withheld exculpatory informant
information in the scandal, after she said she would do it again. The
Bar recommended suspending Nassar for a year.
California is not unique in having cops and prosecutors
who engage in misconduct. In Dallas, Texas, police charged Jose Luis
Vega in 2002 with possessing hundreds of thousands of dollars’ worth of
cocaine, after police said they found 25 kilograms of cocaine in a car
parked outside Vega’s auto repair shop.
The “cocaine,” however, was sheetrock powder packaged as
cocaine, and Dallas police knew that. But they still wrote in their
reports that the powder tested positive for cocaine.
The case against Vega began with a longtime informant who
police said had worked with narcotics officers in more than 70 cases in
the previous two years, for which he was paid $200,000. This informant
led police to the vehicle containing the powder on Vega’s lot,
convincing them that Vega was a large-scale drug dealer. Vega was
arrested and sat in jail on $500,000 bail.
When defense attorney Cynthia Barbare
heard about Vega’s predicament, she had the powder tested by a lab. The
result? Sheetrock powder, just like the police had known all along. By
then, other Dallas defense attorneys heard about Vega’s carload of
sheetrock powder, and 18 other cases by the same informant were exposed
as involving sheetrock powder.
The District Attorney’s Office dismissed the charges in
all 18 cases together with 21 additional cases suspected of being
tainted by the informant. Some had already pleaded guilty, however, and
had to challenge their convictions separately, which highlights the fact
that factually innocent people regularly plead guilty to crimes they
didn’t commit because doing so represents the more attractive option
when caught in a system that’s frequently more concerned about getting
convictions than the truth.
“How could these field tests have been positive for drugs
when there were no drugs?” Barbare asked rhetorically. She surmised that
officers had hoped the defendants would just plead guilty before lab
tests could be done, as is common in drug cases.
Defense attorneys pointed out that all of the 18 cases
dismissed involved the same informant. “What I think is what a lot of
people are thinking—that we have some dirty police officers in this
city,” a defense lawyer for one of the defendants in the scandal said.
Also in Texas, former Burleson County District Attorney
Charles Sebesta found himself in hot water with the State Bar for
continuing to publicly declare that Anthony Graves committed murder,
even after Graves was freed from prison because Sebesta purposely
withheld favorable evidence from Graves in order to get a conviction.
Graves spent nearly 18 years in prison before being
exonerated and receiving $1.4 million in compensation for what Sebesta
did to him. However, Sebesta continued to declare that Graves was
guilty—for 20 years—and nothing was done about it until Graves filed a
complaint with the State Bar.
The Bar found “just cause” to sanction Sebesta, which was
unusual given the Bar’s track record in 91 criminal cases where a
prosecutor committed misconduct resulted in zero disciplinary actions
against those prosecutors.
And once again in Texas, this time in Tulia, a tiny town
of 5,000 in the Panhandle, 39 black people were arrested in 1999 by the
same cop, Tom Coleman, on drug charges. When it came to light in 2003
that Coleman was accused of racial prejudice, a Dallas judge threw out
all of the cases, and others arrested by Coleman were cleared by
Governor Rick Perry.
Coleman, the judge said, was “the most devious,
nonresponsive law enforcement witness this court has witnessed in 25
years on the bench in Texas.” The Court said Coleman had submitted false
reports and misidentified various defendants during his investigations.
Coleman has since been charged with perjury, and the ACLU
of Texas has urged lawmakers to pass a law to prevent convictions based
solely on one officer’s statement without further evidence.
Recent News Stories
Recall the scandal at the OCDA Office involving the
corrupt jailhouse informant program. One of the jailhouse informants,
Mark Cleveland, exposed the program in an interview with 60 Minutes in 2017. Cleveland, a career criminal himself with admittedly over 100 arrests, told 60 Minutes that he was able to cut at least 40 years off his sentence simply by “ratting” on fellow prisoners.
“Snitches do lie every opportunity they have—if they need
to, they will,” he said. “It’s about getting outta jail. What do I have
to do to get outta jail?”
Cleveland told 60 Minutes that he was part of a
secret and tightly organized network of informants in the Orange County
jails. He said guards would place snitches like him near high-profile
prisoners and then guide them on what to dig for to bolster prosecutors’
cases.
He said, for example, a guard would put
him in a cell with a prisoner and say, “We want him on murder,” and that
“if you could give us any information on that, I’ll personally walk you
out of the jail.” Cleveland showed 60 Minutes a briefcase full
of notes and evidence on every snitch case he had done. He kept
meticulous notes on dozens of cases, so he could report on the prisoners
he was targeting.
Cleveland even mentioned Tony Rackauckas, the OCDA
prosecutor who denied that his office had a jailhouse informant program.
“I was working right there with Tony,” Cleveland said. “I would call
him up and he loved it.” When asked about Cleveland’s statements,
Rackauckas told 60 Minutes that his memory of Cleveland “is not that clear.”
After snitching on prisoners in dozens of cases, Cleveland
decided to snitch on the prosecutors, exposing the OCDA scandal on
national TV. There’s an element of poetic justice in that.
In Louisville, Kentucky, Isaiah Jenkins was charged with
the shooting death of George Brown during a drug buy the week before
Christmas 2016. Jenkins’ codefendant, Derrick Taylor, agreed to testify
against Jenkins as part of the plea deal. Taylor said Jenkins got into
an argument with Brown and shot him.
Taylor lied.
A recording of Taylor admitting to a family member that he
lied to prosecutors and that he considered it all a “game” came to
light. The state took back its plea offer to Taylor, and Jenkins asked
that the charges against him are dropped.
“It is well known that heavily incentivized informant
testimony is a leading cause of wrongful convictions,” Jenkins’ lawyer
said. Taylor’s testimony was the primary evidence the state had against
Jenkins.
The City of Louisville also paid out $7.5
million in early 2018 to Kerry Porter, who spent 11 years in prison
based in part on the false testimony of two jailhouse informants.
Nevertheless, the city defended its use of jailhouse
snitches, saying that it “encourages” such activity, and it uses
jailhouse informant testimony only if it is “determined to be credible
and can be corroborated.”
In July 2018, Arkansas prisoner Lacquanda “Faye” Jacobs
was released from prison after 26 years based on the testimony of an
incentivized witness who later recanted his story when he was arrested
on charges of his own. The witness’ testimony was the sole evidence used
to convict Jacobs.
Facts and Figures
A 2014 Northwestern University study
found that almost half of the wrongful convictions in death penalty
cases were based on false testimony of incentivized witnesses, making
snitches the leading cause of wrongful convictions in capital cases. By
2016, the National Registry of Exonerations found that 81 of 116 death
penalty exonerations involved perjury or false testimony by incentivized
witnesses, an increase up to 70 percent. Barry Scheck’s Innocence
Project found that 25 percent of DNA exonerations involved the knowing
use of false incentivized witness testimony, and 11 percent involved the
use of coerced witness testimony.
Families Against Mandatory Minimums noted in 2010 that the
threat of mandatory minimum sentences coerced 25 percent of defendants
to cooperate with law enforcement in hopes of persuading the government
to file a motion for a sentence below the mandatory minimum, since only a
motion by the government can get around a mandatory minimum sentence.
Studies on Incentivized Witnesses
Numerous studies have been conducted
on incentivized witnesses, including their effect on wrongful
convictions, why they decide to cooperate with the government, and what
it takes to persuade someone to become an incentivized witness.
While the studies went about their findings in various
ways, they all came to the same conclusion: offered an incentive to do
so, most people, even honest people, will lie in exchange for some
benefit.
In a 2017 study led by University of Arizona law professor
Christopher Robertson, two experiments conducted on hundreds of people
showed that 20 percent of one group would lie as a witness for the
government in a case against someone else to obtain leniency for an
unrelated offense, and 55 percent in another study group would lie
against one of their codefendants in order to get leniency.
The vignette-based experiments conducted by Robertson and
his colleagues showed that non-criminals elected to lie at a rate
shockingly higher than one might have expected. At the same time, they
recognized that their experiments actually underestimated the rate
jailhouse informants would testify falsely for the government. They
based this conclusion on the fact that jailhouse informants would be
even more inclined to lie than the average person—because that is what
criminals do, they said.
Researchers at the University of Arkansas in 2009 found
that an offer to students to get out of having to complete another
assignment resulted in about one-third of them providing false testimony
against someone, even when they were told that the person had not
committed the offense.
The researchers said this result was not surprising since incentive is a “selfish motivation.”
In addition, researchers at the Bluhm Legal Clinic at
Northwest University School of Law said studies show incentivized
witnesses lack confidence in themselves, crave attention, and have a
need to feel important.
Race also plays a major role. In two studies done in the
mid-1990s, researchers found that blacks are generally seen as less
credible than whites and that juries are less persuaded by blacks
testifying against other blacks than by whites testifying against black
defendants.
Unsurprisingly, researchers across the board found that
informants who did not receive an incentive were more objective and more
honest in their testimonies.
---
Sources: snitching.org,
washingtonpost.com, texasmonthly.com, aclu.org, reviewjournal.com,
wdrb.com, arktimes.com, law.uw.edu, innocenceproject.org,
albanylawreview.org
Additional Sources: “Incentivized
Informants, Brady, Ruiz, and Wrongful Imprisonment: Requiring Pre-Plea
Disclosures of Material Exculpatory Evidence” by Markus Surrat, Wash. L.
Rv. 93 (2018); “Beyond Unreliable: How Snitches Contribute to Wrongful
Convictions,” by Alexandra Natapoff, Golden Gate Univ., L. Rev. 37; “The
Effects of Accomplice Witnesses and Jailhouse Informants on Jury
Decision Making” by Jeffrey S. Neuschatz, et al., Law and Human Behavior
32.2 (2008); “Soft Words of Hope: Giglio, Accomplice Witnesses, and the
Problem of Implied Inducements,” by Michael R. Cassidy, NW Univ. L.
Rev. 98 (2003); “The Snitch System,” NW Univ. School of Law Center on
Wrongful Convictions; “Incentives, Lies, and Disclosure,” by Christopher
T. Robertson and D. Alex Winkleman, Univ. of Penn. J. of Const’l Law 20
(2017); “Incentives Increase the Rate of False but not True Secondary
Confessions from Informants with an Allegiance to a Suspect” by Jessica
K. Swanner and Denise R. Beike, Law and Human Behavior 34.5;
Attributions in the Courtroom: The Influence of Race, Incentive, and
Witness Type on Jurors’ Perceptions of Secondary Confessions” by Evelyn
M. Maeder and Susan Yamamoto, Psychology, Crime & Law 23.4 (2017);
“Triple Exoneration: Charges Dismissed Against Three Men Wrongly
Imprisoned on Testimony of Informant,” School of Law, Univ. of
Washington; “Actual Innocence and Wrongful Convictions” by Brandon L.
Garrett, Duke Univ. School of Law (2017); “Understanding Snitching” by
Families Against Mandatory Minimums; “‘Than That One Innocent Suffer’:
Evaluating State Safeguards Against Wrongful Convictions” by Robert J.
Norris, et al., Albany Law Review (2011); Illinois Compiled Statutes
5/115-21 (2003)
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