Matthew T. Mangino
GateHouse Media
April 22, 2016
The Orange County, California district attorney convened a
committee of legal experts to respond to a jailhouse informant scandal that
rocked the office. Men and women were being sent to prison, some for life,
based on the unreliable testimony of self-serving prison informants.
Earlier this year the committee issued a scathing report.
According to the Los Angeles Times, the committee cited a failure in leadership
that compared the office to “a ship without a rudder.”
The committee traced those failures to a “win-at-all cost
mentality.”
The win-at-all costs mentality goes well beyond Orange
County. The Northwestern Law School’s Center on wrongful convictions found in
2005 that false testimony from informants is the leading cause of wrongful
conviction in capital cases in the modern era of the death penalty.
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.
In 2011, California took it a step further. Governor Jerry
Brown signed a bill prohibiting convictions based solely on the testimony of
jailhouse informants. The law blocks convictions in cases without corroborating
testimony of witnesses or forensic evidence.
Many states are lagging behind in this area of the law. For
instance in Pennsylvania and Ohio there are general jury instructions 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.
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