Saturday, December 2, 2006

The Snitch System

The Snitch System

How Incentivised
Witnesses Put 38 Innocent Americans on Death Row

— Research Report —
By Rob Warden Executive Director, Center on Wrongful Convictions Bluhm Legal Clinic, Northwestern University School of Law
with research assistance from Jennifer Linzer and Judith Royal

Presented April 25, 2002
Arizona State University College of Law ­ Tempe, Arizona

The history of the snitch in Anglo-American law is long and inglorious.

In the Eighteenth Century, the English criminal justice system's reliance on informants — "crown witnesses" — was standard. Except in instances where an offender was caught in the act or in pursuit, the crown-witness system appeared to have been not the last but the only resort of the authorities.

Unlike its modern American incarnation, however, the old English practice at least was intellectually honest. Crown witnesses' motives admittedly were unholy, and the quid pro quo was open and straight forward. Not only did informants elude prosecution, they also received monetary rewards — "blood money," in the vernacular of the era — prescribed by law. Moreover, everyone recognized that crown witnesses were turned back onto the streets — as one commentator put it — "to remain the contempt and terror of society."

The system produced a cycle of betrayal in which each crown witness knew he might find himself soon in the dock confronted by another crown witness. An example was the case of Charles Cane, who had provided evidence that sent two men to their deaths in 1755. A few months later, a crown witness did unto him as he had done unto others. After Cane was hanged at Tyburn in 1756, the clergyman who ministered to him explained that Cane had expected "nothing less than hanging to be his fate at last, but not of the evil day's coming so soon." Such cases gave rise to the saying that what goes around comes around.

If all cases had ended so poetically, perhaps informant-dependent prosecutions would not have been entirely objectionable, but O'Henry endings in real life are rare. Joshua Kidden, for example, came to a decidedly unpoetic end when he was convicted and hanged in 1754 for a highway robbery allegedly committed upon one Mary Jones. It was discovered — after the execution — that there had been no robbery. Mary Jones was part of a conspiracy to frame innocent men to collect rewards. One of her cohorts planted a coin on Kidden, another apprehended him, and Mary Jones identified the coin as hers before an examining magistrate. The scheme, repeated an unknown number of times before it was discovered, netted the conspirators substantial sums — up to £140 per case. It also took an unknown number of innocent lives.

That at the dawn of the Twenty-first Century the United States continues to employ methods of such manifest untrustworthiness as those thoroughly discredited in England nearly 250 years ago should disabuse anyone of the notion that we are a society that believes it better that ten guilty men go free than that one innocent man be convicted. It appears that the opposite is true, although it could be argued that the American snitch system indeed sets more guilty free — in the persons of the snitches themselves — than it convicts.

But the result is worse: The system has put innumerable innocent Americans in jeopardy of life and limb. In fact, it probably has claimed at least one innocent American life — that of Jesse Tafero, who was executed in 1990 for a murder in Broward County, Florida. Tafero's conviction was based on the testimony of two witnesses. One was the man who probably committed the crime, who had gunpowder residue on his hands, and who failed a polygraph. The other was a jailhouse snitch who claimed that Tafero had confessed. The witnesses sent not only Tafero to death row, but also Tafero's girlfriend, Sonia Jacobs, whose conviction and death sentence were overturned by a federal court, leading to her release two years after Tafero's execution.

Perhaps it is telling that the first documented wrongful conviction case in the United States involved a snitch. The case arose in 1819 in Manchester, Vermont. Jesse and Stephen Boorn were suspected of killing their brother-in-law, Russel Colvin. Jesse was put into a cell with a forger, Silas Merrill, who promptly told authorities that Jesse confessed. Merrill was rewarded with freedom. The Boorn brothers were convicted and sentenced to death, only to be saved when Colvin was found alive and well and living in New Jersey.

America's most infamous snitch — Leslie Vernon White — came along some 170 years later in California. White's story was first reported by Ted Rohrlich of the Los Angeles Times and proceeded to be picked up by Sixty Minutes. A career criminal, White faked confessions in at least a dozen cases, learning details of the cases from newspapers and worming information out of police and prosecutors via telephone from jail. He explained that the confession-fabricating business was highly competitive, and it spawned insider slogans: "Don't go to the pen — send a friend" and "If you can't do the time, just drop a dime."

The extent of the snitch problem is unknown, but Ken Armstrong and Steve Mills of the Chicago Tribune found in late 1999 that Illinois prosecutors used snitch witnesses to help convict at least 46 defendants — 16.1% of 285 sentenced to death — after Furman v. Georgia. Armstrong and Mills did not include other incentivised witnesses, such as purported accomplices who were granted leniency or immunity from prosecution in exchange for their testimony.

If the rate documented by Armstrong and Mills in Illinois were assumed to apply nationally — of course, we do not know if the Illinois rate is high, low, or average — it would mean that approximately 600 men and women currently on death row in the United States were put there at least in part by snitches.

This report analyzes the role of snitches and other incentivised witnesses in the cases of 97 persons who have been released from the nation's death rows since capital punishment was reinstated following Furman.

• Prosecutors used incentivised witnesses in the cases of 38 (39.2%) of the 97 innocent persons whose cases were examined for this report.

• The 38 persons wrongfully convicted in whole or part based on incentivised witness testimony served a total of 291 years in prison before they were released; the median time was 8.1 years, the mean 7.7 years.

• False testimony by incentivised witnesses is the second most prevalent factor in wrongful convictions in U.S. capital cases, exceeded only by incorrect or perjured eyewitness testimony, found in 53.5% of cases. The next most prevalent factors were false or fabricated confessions, found in 14% of the cases, and incorrect or fabricated forensic evidence, found in 10.5%.

•Of the 38 defendants wrongfully sentenced to death, 16 were convicted in whole or part on the testimony of jailhouse informants, all but two of whom appear to have simply fabricated confessions. The other 22 were convicted in whole or part on the testimony of other incentivised witnesses.
• Incentivised testimony was the sole basis of the conviction in 18 cases — 18.6% of all documented wrongful convictions in capital cases and 47.4% of the cases involving incentivised testimony.
• The factor that was most prevalent in concert with incentivised testimony was police and/or prosecutorial misconduct, which was documented in 14 cases, or 36.8% of the cases in which incentivised testimony was used.
• Three factors — eyewitness error or perjury, false confessions, and faulty forensic evidence — each were present in 4 cases — 10.8%.
• In 12 cases, more than one additional factor contributed to the wrongful conviction.
• Wrongful convictions involving incentivised testimony occurred in 17 to the 38 states that practice capital punishment. The leading states were Illinois with 9 wrongfully convicted prisoners, Oklahoma with 5, and Florida and New Mexico with 4 each.
• The most prevalent factor involved in the exoneration of prisoners wrongfully convicted in whole or part by incentivised testimony was recantation of the incentivised witnesses. Recantations occurred in 17 cases — 44.7% of the cases in which prosecutors used incentivised testimony.
• Other factors leading to exonerations included news media investigations in 14 cases (36.8%), apprehension of the actual killer or killers in 10 cases (26.3%), DNA testing in 5 cases (13.2%), the discovery of new witnesses in 5 cases (13.2%), miscellaneous new evidence in 10 cases (26.3%), and investigations by anti-death-penalty activists in 2 cases (5.3%).

Conclusions and Recommendations
Given the demonstrated unreliability of incentivised witness testimony, its use should be strictly limited to cases in which it has been corroborated by substantial evidence. If, for instance, it leads to the discovery of a murder weapon or items taken in a robbery, it should be admitted into evidence. However, it should never be allowed simply because it purports to be self-corroborating — that is, because it contains information that might comport with the facts of the crime.
Police and prosecutors should use informants only in the way that responsible news media use confidential sources — as a starting point that may lead to solid information. (It is ironic that the news media — at least in general — have a higher standard for publishing information that might damage someone's reputation than the criminal justice has for presenting information in court that might result in a wrongful death sentence.)
Interrogations of informants by investigators should be recorded — preferably video-taped, but if that is not possible audio-taped — and the tapes should be accessible to the defense under normal discovery rules. Sworn statements should be taken from prospective informants, and when such statements are shown to be false, an independent special prosecutor should be appointed to pursue prosecuting the prospective witness for perjury.

Appendix A —

Summaries of U.S. capital cases in which convictions rested in whole or part on testimony of incentivized witnesses.

Appendix B —

Chart showing factors in addition to incentivised testimony that led to wrongful convictions in U.S. capital cases and factors contributing to the legal exoneration of those wrongfully convicted.

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1 comment:

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