Category Archives: snitching

CA: Snitching requires corroboration

In a long overdue move, Gov. Jerry Brown of California just signed into law SB 687, which bans judges and juries from convicting defendants based solely on the uncorroborated testimony of jailhouse informants. From the bill itself:

This bill would additionally provide that a judge or jury may not enter a judgment of conviction upon a criminal defendant, find a special circumstance true, or use a fact in aggravation based solely on the uncorroborated testimony of an in-custody informant, as defined. The bill would provide that corroboration shall not be deemed sufficient if it merely shows the commission of the offense, the special circumstance, or the circumstance in aggravation. The bill would provide that the corroboration of an in-custody informant shall not be provided by the testimony of another in-custody informant.

This is a major step forward in the fight against unreliable and wrongful convictions. Jailhouse snitch testimony has obvious problems, which have been chronicled here before, and in fact, this bill is identical to one passed by the California legislature in 2008, only to be subsequently vetoed by the Governator. Despite opposition from some prosecutors offices, Gov. Brown made this requirement the law of California and for good reason. This survey [PDF] from the Center for Wrongful Convictions at Northwestern Law School found that fully 48% of wrongful convictions were brought about by jailhouse testimony. The Innocence Project states that 15% of DNA exonerations were in cases of convictions that featured snitch testimony. Here’s a Pew Trust report [PDF] on the problems with this kind of testimony.

Surprisingly, California now becomes only the 18th state to enforce this kind of prohibition. Most other states take a half-hearted approach, like Connecticut, providing only for a “special” jury instruction warning juries to consider this kind of testimony skeptically. From the model jury instructions:

Generally, the court should not instruct the jury on the credibility of a particular witness, but the Supreme Court has recognized three exceptions: the complaining witness, an accomplice, and an informant. See State v. Patterson, 276 Conn. 452, 470 (2005); State v. Ortiz, 252 Conn. 533, 561-62 (2000).

The exception for informant testimony was first recognized in State v. Patterson, 276 Conn. 452 (2005). “Because the testimony of an informant who expects to receive a benefit from the state in exchange for his or her cooperation is no less suspect than the testimony of an accomplice who expects leniency from the state, we conclude that the defendant was entitled to an instruction substantially in accord with the one that he had sought.” Id., 470. Though originally limited, in Patterson, to informants who had actually been promised a benefit in return for his or her testimony, in State v. Arroyo, 292 Conn. 558 (2009), the Court expanded it to any informant. “[T]he trial court should give a special credibility instruction to the jury whenever [jailhouse informant] testimony is given, regardless of whether the informant has received an express promise of a benefit.” Id., 569.

If the testimony is so inherently unreliable, then courts and juries should be prohibited from relying solely on such testimony to convict people. But that, I suppose, is a matter for the legislature and not the courts.

It’s 5 p.m. Do you know where your bills are?

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Today, at 5:00pm, the Judiciary Committee of the state legislature closed for business, just like any other day. But today is important for two reasons: 1) It was the last day on which the committee could vote on bills; 2) This marked the first year that the eyewitness identification reform bill passed and will now head to the legislature for a full vote.

There are several bills I’ve been tracking for a while now, of interest to me and the regular reader. We now know the fate of all those bills (here’s a list of all bills voted out of committee and here’s a list of those that were on the agenda).

Good news:

The biggest news, in my opinion, is that the eyewitness identification reform bill received enough votes to make it out of committee (it died in committee last year). This is a tremendous step forward in the quest for adoption of best practices in lineups and photo arrays.

In addition, the sex offender residency restriction bill was never called to vote, and so unless it’s added as an amendment to a bill that did pass, it has died. (My problems with this bill were documented in this post.)

Another year and another assault on the dignity of The Great Writ has been turned away. The habeas corpus “reform” bill also died in committee, never being called to a vote.

For the second year in a row, the Adam Walsh fearmongering and bleeding money Act also failed to make it out of committee.

The innocuously titled “Act Concerning Subpoenas for Property” also wasn’t called to a vote and went away quietly. Don’t get fooled by the title. This was a very, very dangerous investigative subpoena bill, essentially granting the state to subpoena whatever the hell they wanted from whomever they wanted, even in the absence of a pending criminal prosecution/investigation. It essentially spat in the face of the Fourth Amendment.

An act seeking to create a mandatory-minimum sentence for assault of a public safety officer made it out of committee, but if I recall correctly, without the mandatory minimum.

Three bills hell bent on pushing Connecticut closer to fulfilling Orwell’s prophecy, one to remove the statute of limitations on perjury in murder cases; one to remove the statute of limitations for hindering murder prosecutions and one making it a crime to fail to report a “serious crime” against a child.

The “sexting” bill made it out of committee. But that could be a good or bad thing depending on your point of view. Me, personally? I don’t care either way.

Bad news:

I’ve always viewed the eyewitness ID bill and the videotaping of interrogations bill as two peas in a pod. Fraternal twins, if you will. Where one goes, so should the other. Unfortunately that wasn’t the case today. I’m not even sure the videotaping of interrogations bill was called for a vote. One step at a time, I guess. There’s always next year (says he, sounding awfully like a Red Sox fan. I need a shower).

The big-ticket news item of the day is the passage of the bill eliminating the statute of limitations for civil suits in child sexual assault cases. It’s not criminal, per se, but a stupid idea nonetheless.

A statewide ban the box proposal was called for a vote, but derailed and then “held”, which is lege-speak for killed.

For the second year, a bill seeking to reduce the zone around schools within which drug offenses triggered an enhanced penalty from 1500 feet to 200 feet. In addition, the penalty would have been triggered only for sales made within school hours. This was a much needed bill and I’m sad that it died.

I’m sure there are others that I’ve missed. Which bill did you want to see make it out of committee and which bill are you glad/mad didn’t?

The fallacy of the good-hearted informant

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An all too common scene in trials when a jailhouse snitch testifies is the elaborate song and dance performed by said snitch and the prosecutor to convince everyone (a bit too loudly) that there is no quid pro quo.

“Did you talk to anyone from the prosecutor’s office before coming forward with [insert damning piece of evidence]?”

“No, of course not.”

“Did anyone from the prosecutor’s office promise you anything in exchange for your testimony?”

“Not a damn thing.”

“Have you been told you’d get a reduction in your sentence for co-operating truthfully?”

“I wish I had, but no one has been so kind.”

“Is everything you’ve said been the truth?”

“Do I look like a liar?”

“So why did you come to us with this information?”

“Out of the goodness of my heart.”

That is what I shall henceforth call “the fallacy of the good-hearted informant”. You can picture it now, can’t you? The prosecutor winking, the informant nodding, the defendant eye-rolling, the judge snickering. The jury? Well, that’s the important question.

Does a jury buy this? Does anyone seriously believe that an inmate would testify without any expectation of a reward? Is there any inmate foolish enough to testify without an expectation?

Consider this: information is power in the criminal justice system. Not the truth. Information. When an inmate obtains information, there is but one thought on his mind: how do I use this to my advantage? How do I translate this into a lower sentence?

Sure, the prosecutor and the inmate may never actually utter the words “sentence modification”, but it is an unwritten understanding. That’s part of the game. The State knows it, the inmate knows it. If he cooperates, he will get some consideration. No one wants to be in jail, whether it is for 6 months or 60 years, and any little advantage that can be obtained, will be used. And the State has an incentive to offer modifications, too. If they really do stiff an informant and don’t reduce his sentence, the next guy will hear about it and will be more hesitant to come forward.

Confession is king and a confession to someone who is not law enforcement is even better. So you can bet every penny left in your 401K that three weeks after a conviction in this hypothetical trial, a motion for modification of sentence will be filed and the sentence of the informant will be reduced.

A chilling confession to a heinous crime is worth its weight in years. So, the next time you’re a juror in a criminal case and an informant testifies that he has no expectation of a reduction in his sentence, join the defendant in rolling your eyes and then tell the rest of the panel that he’s full of it during deliberations.

As for the defense attorneys (and in an effort to make this post more than just stating the obvious), what tricks do you find work best in countering this charade? Maybe someone should start keeping track of every time an informant has received a reduction in his/her sentence after testifying in a particular courthouse or with the blessings of a particular prosecutor’s office.

[For more posts on other fallacies and legal fictions, click here.]

CA bans uncorroborated jailhouse testimony

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Uncorroborated testimony in criminal cases has always been a source of problems and worries. Think about it – you, as the jury, are being asked to believe one person over another, based solely on the tightly controlled testimony presented in court. It amazes me, and I know Miranda agrees, that any jury actually convicts based solely on the testimony of the complainant. How is there not reasonable doubt in every case?

Anyway, we have to start somewhere – and that’s where CA has started. The CA Senate passed a bill today (by a bare majority, no less) that bans the use of uncorroborated jailhouse testimony in convicting defendants.

Assemblyman Mark Leno, D-San Francisco, said jailhouse informants frequently have an incentive to lie. He said Romero’s bill would help prevent wrongful convictions.

Whether it prevents wrongful convictions or not remains to be seen, but he’s got the part about the incentive to lie right. What greater incentive is there than to get a reduction in one’s sentence; a chance at escaping the hell-holes that are correctional institutions a little quicker?

Well, a “snitch” can be cross-examined, you say. True, but the lawyer doesn’t always have all the ammunition he needs. Prosecutors frequently enter into no agreement with the “snitch” other than a wink and a nod, so the snitch can “truthfully” deny any reciprocity when asked during cross-examination:

“Isn’t it true that in exchange for your testimony today, you are receiving a sentence modification?”

[With a straight face] “No. The State has not promised me any modification. I am doing this out of the goodwill that overflows from within my heart.”

“You don’t expect to receive any consideration from the State in exchange for your testimony?”

“I can expect anything, doesn’t mean I’ll get it” OR “No.”

Then what? You’re stuck and sure as heck, three weeks after your client is convicted, the snitch quietly has a hearing where his sentence is reduced by half.

This bill eliminates the problem. No corroboration, no testimony, no incentive to lie.

Now if they could only fix that damn co-defendant’s testimony doesn’t require corroboration rule, we’d have something.

Cops lie and people die

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Grits for Breakfast points us to this important and disturbing story published in the L.A. Times a few days ago. It is a report on the murder of 16-year old Martha Puebla, whose name the police used while fabricating an identification.

They were trying to get her boyfriend for an unrelated murder and during their interrogation of him, they showed him a photo array (already a source of many problems) where they forged a circle around his picture with Martha’s initials and an “identification” beneath it.

To drive home his point, [police officer] Pinner laid down a “six-pack” — an array of mug shots that detectives often show to witnesses or victims of crimes. On it, [suspect] Ledesma’s photo was circled, and the initials “M.P.” were written below it. “Those is the guy that shot my friends boyfriend” was scrawled along the margin, followed by Puebla’s signature.

“I don’t even know a Martha,” Ledesma lied.

Police deceit during investigations and interrogations has long been tolerated (see, e.g. Illinios v. Perkins), but this may be one of those instances of the disconnect between theory and reality. In this case, it lead to Puebla’s death:

The next night, Ledesma reached for a pay phone outside his cell. “Cokester,” he said into the receiver, calling his friend Javier Covarrubias by one of his gang monikers, “do you know the slut that lives there by . . . my house? Her name starts with an M . . . I need her to disappear. She is dropping dimes.”

To the gang, Puebla was a snitch and needed to be dealt with.

“Uh huh, like that,” Ledesma told Covarrubias, using a mix of Spanish and English. “But [keep a] low-pro[file]. ..Stay on your toes, homie. And don’t get caught.”

Of course, this is also a product of the anti-snitching culture that has garnered much attention. But the fact remains that as a result of the deceit on the part of these law enforcement officers, a young girl is dead.

Cases like Illinois above have given cops free reign of the interrogation room – everyone’s heard of good cop, bad cop – and license to lie about almost anything, resulting in false confessions.

While I recognize the arguments supporting lying to suspects during interrogations, there has to be some sort of oversight and limits placed on the extent of permissible deceit. Certainly, endangering the life of someone who is innocent and whom the cops should know would be in danger of losing his/her life as a result of their lie should be outside those limits.

The responsibility of law enforcement is to protect citizens and ensure their safety, not to endanger them while engaged in a tunnel-visioned pursuit of “catching a criminal”.

So what is the line? When is deceit okay, if at all? Should it hinge on waiver of Miranda rights? I’ll expound on those thoughts in a later post.

Snitching: Here we go again

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Update: Scott clarifies (in the comments here and in this post) his definition of “rats”. He says he’s referring to defendant X who is guilty of crime 1, who, in exchange for a light prison sentence, tells the government about defendant Y who committed crime 2.

If only it were that simple. Sure that scenario arises, but how do you know that before you represent him? What about the scenario where defendant X and defendant Y might be guilty of crime 1. Defendant X wants to plead guilty because he’s got a long record, evidence is murky and there’s a chance that he might be convicted. At that point, he wants a lesser sentence, so he offers to testify against defendant Y. Is he a snitch? If so, why would you not represent him? By not representing him, are you not doing a disservice to the client that hired you?

Or is the dividing line that your client must be willing to testify against someone else committing only a different crime? I guess I still don’t understand (or perhaps I don’t believe that this the case).

Original post: The story that never dies: Snitching. Should you or shouldn’t you? That is the question that has been bandied about the “practical blawgosphere” for months now and has returned with a vengeance. This morning, after Norm’s latest post, Scott got all atwitter.

SO. Instead of rehashing everything said in the last day (and last few months), I’ll ask this of those that will not represent snitches: What do you mean by snitching? Is it purely co-operation with State in the prosecution of another? Does it include a third-party defense (as in testifying “I didn’t do it, my buddy did”) and what is the difference between the two?

I’ll give you my answer: There is none. Testifying on the stand that you didn’t commit a crime, but you know who did and that person is X, is akin to testifying at the trial of X that X committed the crime.

So you do non-snitchers draw that distinction? If not, why not?

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The Importance of Being Earnest

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Category Archives: snitching

CA: Snitching requires corroboration

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It’s 5 p.m. Do you know where your bills are?

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The fallacy of the good-hearted informant

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CA bans uncorroborated jailhouse testimony

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Cops lie and people die

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Snitching: Here we go again

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The Importance of Being Earnest

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