Do snitches serve justice?

The Youngstown Vindicator
August 7, 2011

The ill-fated use of a jailhouse informant was chronicled in John Grisham’s first non-fiction book, “The Innocent Man.” Grisham examined the trial, conviction and exoneration of Ron Williamson. The key prosecution witness told authorities she overheard Williamson make incriminating remarks while she awaited her own trial. She had prior felony convictions and this was not her first appearance as a jailhouse informant in a murder trial. At one point, Williamson was five days from execution before he was ultimately exonerated.

Several years ago in Lawrence County, Pa., Thomas Kimbell was prosecuted by the attorney general’s office and convicted of quadruple homicide, in part through the use of a jailhouse informant. Kimbell was later awarded a new trial and found not guilty.

In Greensburg, Pa., Kevin Murphy is being tried for the murder of his mother, sister and aunt. The lead witness is Murphy’s former cellmate. District Attorney John Peck defended the use of jailhouse informants. Peck said he cannot pick and choose which inmates come forward with information. He told the Pittsburgh Tribune-Review, “We very closely scrutinize the information they bring forward.”

‘Confession’

Jailhouse informants are nothing new. In 1819, Vermont authorities could not solve an alleged homicide. The victim was missing, and the authorities sought the help of a jailhouse informant who received a “confession” from a suspect, who was ultimately sentenced to death. Only days before the scheduled execution, the “murder victim” strolled back into town very much alive.

A jailhouse informant is an inmate who contacts law enforcement authorities with information about another defendant facing trial. In exchange for helpful information the government provides a benefit to the informant such as a sentence reduction, reduction in charges or some special privilege.

The incentive to come forward with information has been codified on a federal level. Federal Sentence Guidelines permit a judge to impose a sentence significantly below the sentence required by the guidelines if the offender being sentenced has provided “substantial assistance” in the prosecution of some other defendant. While prosecutors say jailhouse informants can provide important — and truthful — testimony, informants have little to lose by lying on the witness stand. Rarely are they charged with perjury, according to the Chicago Tribune. It is not difficult for an informant to piece together the details of a crime from newspapers or legal documents and fabricate a cellmate’s “confession.”

Some jailhouse informants provide useful information that is, at times, essential in the search for truth. However, what are policymakers doing to insure fairness and to prohibit unscrupulous inmates from benefiting by their continuing misdeeds?

Connecticut has adopted a specific informant jury instruction that includes the following language, “You must look with particular care at the testimony of an informant and scrutinize it very carefully before you accept it.” Jury instructions are the rules that juries are bound by as they make a decision. The instructions are provided to the jury by a judge immediately before they begin to deliberate.

Last month California took it a step further. The legislature passed a bill prohibiting future convictions based solely on the testimony of jailhouse informants. The California District Attorneys Association and other law enforcement groups were opposed to the bill. The law would block convictions in cases without corroborating testimony of witnesses or forensic evidence.

Jury instructions

Pennsylvania and Ohio are lagging behind in this area of the law. There are general jury instructions, in both states, regarding the credibility of a witness, whether the witness is an eyewitness or an informant.

In Pennsylvania, there is a specific instruction available when a witness has a penal interest in providing testimony, such as a witness who has been promised a more lenient sentence in exchange for testifying. In Ohio, there is an instruction for uncorroborated accomplice testimony, “use it with great caution and view it with grave suspicion.” Ohio does not have a similar instruction for informant testimony.

When a witness is a jailhouse informant her testimony needs to be judged by special precautionary rules. Justice demands those rules be codified in a concise and understandable manner.