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.
When a witness is a jailhouse informant, his or her testimony needs to be judged by special precautionary rules. Justice demands those rules be codified in a concise and understandable manner.
— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.