by Dale Chappell
Every year, innocent people go to prison, or even death row, because of government informants who lie to get a good deal in their own criminal case. The problem, studies show, is the fact that this horse-trading between the informants and the government is largely informal, unregulated, and highly secretive. On top of that, the informants hold all the cards, because they have valuable information the government wants.
This motivates some prosecutors to bend whatever rules there are to get what they want. This must change. There has to be meaningful transparency with the government’s use of “incentivized witnesses.” There must be some way to validate the information offered by an incentivized witness who has every reason to game the system, because the system in place is deeply flawed.
Overview of the Problem
Snitches have been around a long time. One of the earliest recorded cases involving a jailhouse informant happened in 1819 in Manchester, Vermont. Two brothers accused of killing their brother-in-law were convicted and sentenced to death based on a jailhouse informant’s testimony. Just before the brothers were hanged, and as the snitch was walking out the jailhouse doors a free man, the “dead” brother-in-law turned up alive and kicking in New Jersey.
Decades later, the Civil War saw tens of thousands of war prisoners “flipping” in order to gain better treatment by their captors. Some of them gave up information on their side’s war plans, while others switched allegiance to the side of their captors. Legal commentators say this proves that harsh treatment of prisoners promotes the prisoner’s innate desire to appeal to authorities in power over them to gain more favorable treatment. Not much has changed today in this respect.
The government’s use of informants became a formal part of law enforcement during the Prohibition era in the 1920s, when the Bureau of Alcohol, Tobacco, and Firearms switched to using entrapment and informants to catch gun and alcohol smugglers, making snitching an integral part of the criminal justice system.
Informant use exploded, however, in the 1970s, when President Richard Nixon declared a “war on drugs,” and the government used the same techniques of entrapment and informants to bust suspected drug offenders on a massive scale. The next presidential term led by Ronald Reagan ramped up the war on drugs by creating harsh mandatory minimum sentences for drug offenders, which could be avoided only if the defendants cooperated with the government by snitching on their confederates. The government’s targets weren’t drug kingpins, but low-level grunts who would flip and give law enforcement information on the higher ups in the organization. Faced sometimes with mandatory life in prison, these low-rung players were forced into a situation where they had no choice but to cooperate, even if it meant they had to make up stories.
Informants have become law enforcement’s “tool of choice,” especially in drug enforcement. While facts and figures are closely guarded secrets, the limited data that is publically available about drug informants show that about 60 percent of drug defendants cooperate in some way in exchange for reduced charges or sentences.
“Often, in DEA [Drug Enforcement Administration], you have agents who do little or no follow up” in drug cases, one prosecutor complained. “So when a cooperator comes and begins to give you information outside of the particular incident, you have no clue if what he says is true,” he said. “It’s bizarre,” another said.
Another problem is that informants offer information that law enforcement often cannot verify as true. When an informant testifies for the government before a jury, the specific details are usually known only to the informant, which gives the appearance that the informant has “inside information.” This bolsters the informant’s credibility with the jury, and proving that the informant’s information is false is nearly an impossible feat for a defendant.
Government witnesses lying on the stand is nothing new, but it is how and why they lie that’s changed, Loyola Law School professor Alexandra Natapoff said in her study, “How Snitches Contribute to Wrongful Convictions.” Prosecutors are heavily invested in the informant’s story to make their case and thus have no real incentive to check a lying informant, she said. This “marriage of convenience” created by the interests of the prosecutor and informant benefits both parties, with an innocent person sometimes going to prison or the death chamber.
Natapoff also notes that police and prosecutors become heavily invested in their informants’ stories and often lack the objectivity needed to step back and see when their sources might be lying. They begin to believe the lies themselves.
Studies also have shown that false testimony by government witnesses cause more wrongful convictions than the next two leading causes—erroneous eyewitness identification and false or coerced confessions—combined.
In a study by the University of Alabama psychology department, mock jurors were unable to detect the coercive nature of confession testimony, and more importantly, they gave undue weight to an informant’s confession testimony in determining guilt. The study’s authors concluded that “if jurors cannot perceive the difference between an honest and dishonest cooperating witness there is grave potential for such testimony to lead to wrongful convictions of the innocent.” In stating the obvious, the researchers observed that this creates a “substantial problem for the criminal justice system.”
When an informant’s testimony is the sole evidence to support a conviction, “the integrity of the system is at stake,” Natapoff said. She observed that the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), placed a requirement on the courts to evaluate the reliability of expert witnesses because they can be “both powerful and quite misleading.” However, there is no such requirement for an incentivized witness testifying about unsubstantiated facts on behalf of the government.
What is an Incentivized Witness?
An incentivized witness is someone who testifies on behalf of the government against another person or group in exchange for an expected benefit. This benefit may include favorable treatment in the person’s own criminal case, money, or other goods or consideration. This, however, does not include citizens who come forward on their own with information about a crime, even if for a reward. These people are known as “good Samaritans.” We are not at all dealing with good Samaritans when it comes to incentivized witnesses.
The term “incentivized” means “a motivation or reason for doing something.” Incentives offered to government witnesses have included reduced sentences, cash, a chance to spare friends or family from criminal charges, or any other deal the government offers for the witness’ testimony.
The term “witness,” also referred to as “informant” in this context, means someone who provides information or testimony in exchange for an incentive. Though not limited to only criminal suspects, by far the most common government informant is the “jailhouse informant,” who is a person facing criminal charges or serving a prison sentence who wants a reduced sentence or charges dropped in exchange for his information against a fellow prisoner. The State of Alaska, for example, defines “informant” as “someone who provides evidence against someone else for money or to escape or reduce punishment for [their] own misdeeds or crimes.” The labels “incentivized witness” and “informant” are often used interchangeably.
The testimony offered by an incentivized witness about what a criminal defendant said or admitted to is called a “secondary confession,” which is defined as “evidence provided by someone other than the suspect and purported to be direct information from the suspect.” It is this secondary confession that’s the product the informant sells and for which the government barters.
“Informants are not the most reliable people around,” Orange County, California, District Attorney Tony Rackauckas told 60 Minutes. When the host asked Rackauckas about a particular informant popular with his office, he said, “I think you should assume you’re talking to an informant. And if he’s talking, he’s probably lying.” Prosecutors know that the product they are buying has defects. But apparently they don’t mind.
Types of Incentivized Witnesses
Snitches come in all shapes and sizes, and their various labels come from their position in the grand scheme of the proceedings.
The “jailhouse snitch” is the prototypical incentivized witness who informs law enforcement or jail staff about what another prisoner has supposedly said or done, usually the result of an overheard conversation or at the snitch’s prodding. This type of informant is often involved in many wrongful convictions.
The “professional snitch” makes a living out of putting people behind bars by selling information to law enforcement. Some professional snitches, like Andrew Chambers discussed on p.6, have made millions of dollars from the government testifying against defendants.
The “accomplice informant” is the codefendant of the person the informant is offering information against in an effort to get his or her own charges dropped or sentence reduced. These informants are commonly used by law enforcement to ensnare others in the scheme, especially the bigger fish.
Interestingly, the Department of Justice does not consider accomplice witnesses as “confidential informants” to which rules governing protection and payments apply. Instead, the government considers these informants “cooperating defendant/witnesses” who have an expectation of a reward for their services. Confidential informants, unlike accomplice witnesses, also do not testify in court in order to protect their identity in future cases.
The “calumniator” has traits of the other types of informants but is distinguished by the desire to shift as much blame as possible onto someone else in order to escape liability. It is not uncommon for the calumniator to place blame on an innocent person, which has resulted in many wrongful convictions.
Conditions and Agreements
The rewards to incentivized witnesses can be substantial. They range from simple extras in prison, like a better cell, to complete immunity from charges, including murder. The U.S. Supreme Court has ruled that prosecutors have authority to provide such incentives to informants in exchange for information.
In effect, the government is “buying” information from an informant by using rewards as payment. An interesting question is how this quid pro quo arrangement is treated under federal anti-bribery laws, which says that “whoever ... directly or indirectly, gives, offers, or promises anything of value” for a person’s testimony may be punished by a fine or prison term.
In United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), a panel of the U.S. Court of Appeals for the Tenth Circuit ruled that the government’s “payment” of rewarding an informant for his testimony violates the federal anti-bribery statute. The panel concluded that “the judicial process is tainted and justice cheapened when factual testimony is purchased, whether with leniency or money.”
However, the government was granted a rehearing, and the Tenth Circuit, sitting en banc, reversed the panel’s decision, ruling that the term ‘whoever’ under the statute applies only to persons and that the government is an ‘entity,’ not a person under the statute. The Court concluded that the law does not apply to prosecutors, and the U.S. Supreme Court declined to hear the issue.
There are no checks on the power of a prosecutor to offer an incentive or reward to an informant, except that the payment must not be contingent on the outcome of the informant’s help. In other words, the prosecutor cannot say, “I will let you out of jail only if your testimony helps to convict this guy.”
Any “promise, reward or inducement” to a government witness is considered exculpatory evidence that must be disclosed to a defendant. In Giglio v. United States, 405 U.S. 150 (1972), the U.S. Supreme Court held that by doing so, a criminal defendant is afforded an opportunity to test the credibility of the government’s witness by way of cross-examination, which satisfies due process under the Constitution.
The past four decades, however, have proven Giglio to be more illusory than real. Promises by the government that are vague or open-ended bypass Giglio’s protections because they are not considered true “promises” under Giglio. For example, the government’s assurance to its witness that it will “make sure he’s taken care of” in exchange for his help is not a promise requiring disclosure under Giglio. Such wink-and-nod type of arrangements allow the government to claim no promise of a reward has been made because it is technically true.
Boston College law professor Michael Cassidy said the Giglio ruling allows prosecutors to fly below the radar, and because of this, a defendant must still rely on the prosecutor’s honor or good faith. However, if that could be counted on without fail, the Giglio ruling would not have been necessary in the first place.
In Hoffa v. United States, 386 U.S. 293 (1966), the U.S. Supreme Court upheld testimony that was purchased by the government because the accused was protected by “the established safeguards of the American legal system.” Again, the Court reasoned that the ability of the defendant to cross-examine the government’s witness alone meets constitutional muster to allow purchased testimony by the government.
The only limit on payments and rewards to government witnesses is that it cannot be based on outcome. Otherwise, the only limit, really, is what the prosecutor thinks the jury will believe before it discredits the witness’ testimony. Studies show that juries can handle quite a lot if they feel the defendant is guilty.
Snitches and Wrongful Convictions
In old England, snitches were common. In the 1700s, Parliament provided for monetary rewards (“blood money”) to snitches along with their release from prison in exchange for information on cases. The case of Joshua Kidden in 1754 is a perfect example of the problem. In that case, a member of a conspiracy to collect blood money set up Kidden by placing a “stolen” coin on him while another member claimed the coin was hers. After Kidden was found guilty and executed, the conspiracy was revealed but all too late for Kidden.
Snitches are the leading cause of wrongful convictions in this country, particularly in capital cases, a 2004 Northwest University study found. Researchers in that study discovered that nearly half of the exonerations involved convictions that were based on snitches. Over 100 of those exonerations were for prisoners on death row.
The snitch system in this country has even created its own slogans: “Don’t go to the pen; send a friend” and “If you can’t do the time, drop a dime.” All joking aside, study after study and exoneration after exoneration have shown wrongful convictions based on incentivized witnesses is a real problem worth a hard look.
Criticism of Incentivized Witnesses
“Criminals are likely to say and do almost anything to get what they want, especially when what they want is to get out of trouble with the law,” U.S. Court of Appeals judge (and former prosecutor) Stephen Trott said in his 1996 commentary on incentivized witnesses titled “Words of Warning for Prosecutors Using Criminals as Witnesses.” Not only do incentivized witnesses have the ability to fabricate evidence, they can do so without sparking much suspicion because they know the information they provide are difficult to corroborate.
Incentivized witnesses can manipulate their version of the facts precisely because they know which facts are verifiable and which are not. The lies by the incentivized witness are difficult to detect, and the jury may infer from the details provided by the witness that the facts are indeed true. And who would know? The prosecutor wants to believe the witness, and the defense attorney does not believe him but cannot prove he is lying.
There also is little to no oversight of a prosecutor’s use of an incentivized witness. The U.S. Supreme Court has ruled that prosecutors have “broad” power to administer criminal justice and prosecute (or not) however they see fit. Retired U.S. District Court judge John Gleeson remarked that “judges are in fact not well suited to supervise criminal investigations, a process which is generally best left to the executive branch.” This leaves the prosecutors themselves to oversee their use of incentivized witnesses, a plan not without its obvious weaknesses.
Because an offer of leniency from the prosecutor provides a powerful incentive to cooperate, it also provides a powerful incentive to lie.
There is also legitimate criticism of allowing criminals to continue to commit crimes with full immunity while cooperating with the government as incentivized witnesses. In the infamous case of James “Whitey” Bulger, FBI handlers responsible for overseeing Bulger’s actions purposely turned a blind eye to his criminal activity, which allegedly included multiple murders while he was cooperating. Critics say the FBI let Bulger’s crimes continue because he had inside information on cases the government wanted badly enough to let a dangerous criminal run free.
James Malloy was a killer who prosecutors set free in exchange for information he supposedly had in some unsolved cases. After prosecutors let Malloy go free as payment for this information, he killed a 15-year-old boy in 2012, just after his release. The kicker is that the information Malloy gave them was worthless.
Critics also point out that prosecutors routinely pile on extra changes they can use as leverage to coerce someone to plead guilty by offering to drop some of the charges. This charge bargaining system cheapens the criminal justice system, some say, and is unfair to defendants who might otherwise go to trial. Further compounding the problem is that the plea agreements signed by those who are induced by government threats of more charges include waivers of appeal and collateral attack and even waiver of the ability to obtain law enforcement records under the Freedom of Information Act. Some question what the government is trying to hide by requiring such waivers.
Prosecutors have broad power to give witnesses payments in exchange for their testimony. Criminal defendants, however, do not have that luxury. For example, the Illinois Supreme Court suspended a criminal defense attorney for 18 months for paying a witness $50 to testify truthfully. Prosecutors, though, are not held to the same standard, as made clear in the Tenth Circuit’s decision in Singleton and by every other circuit since that ruling.
Justification for Using Incentivized Witnesses
“Courts have countenanced the use of informants from time immemorial,” Judge Learned Hand said in a 1950 case in support of the use of government informants. He reasoned that using informants was proper because “it is usually necessary to rely upon them or upon accomplices because criminals will almost certainly proceed covertly.”
Certain crimes, such as political corruption and organized crime, require “insider information” to expose the criminal activity. Thus, limiting the government’s ability to use informants could deprive the government of an important source of evidence critical in ferreting out crime, some say.
Two primary reasons for using incentivized witnesses exists. First, a cooperating witness’ testimony may strengthen a marginal case against a more culpable or dangerous defendant. Second, the cooperation might allow a prosecutor to solve a different, more serious crime than the one faced by the witness.
Indeed, the commentators who recognize that the use of government informants has its benefits in fighting crime also make clear that the potential for problems outweigh the positives, at least without better regulation and oversight of the process.
Real-life Examples of Problems with Incentivized Witnesses
Perhaps some real life examples of the damage caused by incentivized witnesses would provide a clearer picture. With hundreds (and possibly thousands) of wrongful convictions because of incentivized witnesses, the following cases are by no means fully illustrative of the harm done by lying informants.
• Andrew Chambers became a millionaire working as a professional informant for the government. He made $4 million his first year as a snitch in 1984. Adjusted for inflation, that comes to almost $9.5 million today. But Chambers’ career as a government snitch came to a halt when the Department of Justice discovered that he committed perjury in at least 16 cases, so the government fired him.
Years later, Chambers became a DEA informant, again, in a case in Phoenix, Arizona. When his involvement came to light and his past lies were exposed, federal prosecutors were forced to dismiss all the charges in the case. The DEA’s decision to use Chambers knowing that he had lied in numerous cases in the past prompted a member of the Senate Judiciary Committee, which has oversight authority over the DEA, to push for a federal investigation into the use of Chambers. Before Chambers was proven to be a liar on the stand, he had testified in at least 280 cases for the government.
• Leslie Vernon White, another lying jailhouse informant, admitted to reporters in 1989 that he consistently gave false information to police and prosecutors in exchange for various benefits. While in jail, White would pretend to be a cop on the phone to get information on the cases of his fellow prisoners.
When White gave made-up confessions using the facts he had gathered posing as a cop, prosecutors believed him because how else would he know those facts unless the guy had confessed to White, they concluded. White helped to convict numerous people using this scam. Defense lawyers compiled a list of convictions involving White, which showed that some people were even sentenced to death because of White’s lies.
• In Spokane Valley, Washington, a drug deal/robbery gone bad got worse when two men arrested for the robbery in 2009 concocted a story that implicated three other men, Paul Statler, Robert Larson, and Tyler Gassman. That story led to the conviction of the three, resulting in combined prison sentences of 99-years.
Three years later, it was discovered that one of the two men had earlier recanted his story when he found out he was not going to be released for cooperating. He admitted that Statler, Larson, and Gassman had nothing to do with the robbery. A Spokane County superior judge threw out their convictions, finding that the recantation proved the three men were actually innocent.
A lawsuit filed by the three was settled in 2017 for $2.25 million under the state’s wrongful conviction statute.
• Known as the “quintessential snitch,” Darryl Moore’s own mother testified in court that she would never believe anything her son said. The State of Illinois ignored her dire warning, used Moore as a paid witness, and then released him, dropping his pending weapons and drug charges, despite his lengthy criminal record as a habitual offender.
Moore later recanted, admitting that he knew nothing about the murder he testified about for the state, but before anything could be done about Moore, he pulled an 11-year-old girl into an alley and raped her. He was sentenced to 60 years in prison for that crime.
• Gary Gauger was sentenced to death in 1994 for supposedly murdering his parents on their farm in Illinois a year earlier. The primary evidence used to convict Gauger was the testimony of a jailhouse snitch, Raymond Wagner, who said he heard Gauger confess to the crime.
Though Gauger’s conviction was reversed on appeal in 1996 when the court found there was no probable cause for his arrest, prosecutors continued to publicly insist that he was guilty. A year later, two members of the Outlaws Motorcycle Gang were convicted of the murders of Gauger’s parents after one of them was caught on tape confessing to the crime.
In 2002, the Illinois governor pardoned Gauger based on his actual innocence.
• In Florida, Shabaka Brown was sentenced to death in 1974 for a murder a jailhouse informant says Brown committed. That informant testified against Brown in exchange for leniency in his own case. Years later, the informant admitted he made it up. Brown was exonerated from death row 14 years later.
• A jury in Louisiana sent two innocent men, Albert Burrell and Michael Graham, Jr., to death row in 1987 after a jailhouse informant lied on the stand. The prosecutor knew the snitch had lied but did nothing about it. Eventually, the prosecutor fessed up, and the two men were released.
These real life examples of wrongful convictions show the disturbing problem with lying incentivized witnesses.
Real-life Examples of Bad
Cops and Prosecutors
In addition to the problems caused by lying incentivized witnesses, some cops and prosecutors cover up lies by their witnesses to keep innocent people in jail. Why would they do such an outrageous thing?
In 2014, prosecutors in the Orange County District Attorney’s Office in California (“OCDA”) were caught lying about and covering up a jailhouse informant program in which prosecutors would place informants near certain defendants in the jail to gather confessions and other incriminating evidence. When defense attorneys started accusing the OCDA of withholding informant evidence, prosecutors started dropping cases to hide their illegal jailhouse informant program. Things only got worse.
OCDA prosecutor Tony Rackauckas dropped murder charges three times in as many months in late 2014 after he was accused of hiding his jailhouse snitch’s information from defendants. Earlier in 2014, Superior Court Judge Thomas Goethals ordered Rackauckas to disclose his list of jailhouse informants in an attempted murder case. Instead, to avoid exposing the jailhouse informant scandal at the OCDA, Rackauckas dismissed the charges. This led to more dismissals rather than complying with the judge’s order.
Months later, in 2015, Judge Goethals tossed the entire OCDA office off a case—all 250 prosecutors—when prosecutors refused to turn over jailhouse informant evidence in accused mass-murderer Scott Dekraai’s case. Goethals found that OCDA prosecutors violated Dekraai’s constitutional rights to confront his accuser by refusing to disclose the jailhouse informant. To compound the problem, the Orange County Sheriff’s Department (“OCSD”) denied it had a jailhouse snitch program in its jails, even after documents revealed by defense attorneys clearly showed that it did.
After a hearing in Dekraai’s case, Assistant Public Defender Scott Sanders uncovered that OCSD mentioned a secret database on informants—for the past 25 years. Goethals concluded at the hearing that OCSD (and OCDA) intentionally lied and willfully withheld exculpatory information from Dekraai. Goethals put the blame on Rackauckas: “It apparently stems from Rackauckas’ loyalty to his law enforcement partners at the expense of his other constitutional and statutory obligations,” the judge said.
The case against Dekraai was nearly bulletproof: He freely confessed to the multiple murders. Still, prosecutors jeopardized a slam dunk first-degree murder case in order to hide its longtime, illegal jailhouse informant program.
In late 2016, the U.S. Department of Justice launched a civil rights investigation into both the OCDA and OCSD for the illegal program. While the investigation was still pending, the State Bar of California found by clear and convincing evidence that one OCDA prosecutor, Sandra Lee Nassar, willfully withheld exculpatory informant information in the scandal, after she said she would do it again. The Bar recommended suspending Nassar for a year.
California is not unique in having cops and prosecutors who engage in misconduct. In Dallas, Texas, police charged Jose Luis Vega in 2002 with possessing hundreds of thousands of dollars’ worth of cocaine, after police said they found 25 kilograms of cocaine in a car parked outside Vega’s auto repair shop.
The “cocaine,” however, was sheetrock powder packaged as cocaine, and Dallas police knew that. But they still wrote in their reports that the powder tested positive for cocaine.
The case against Vega began with a longtime informant who police said had worked with narcotics officers in more than 70 cases in the previous two years, for which he was paid $200,000. This informant led police to the vehicle containing the powder on Vega’s lot, convincing them that Vega was a large-scale drug dealer. Vega was arrested and sat in jail on $500,000 bail.
When defense attorney Cynthia Barbare heard about Vega’s predicament, she had the powder tested by a lab. The result? Sheetrock powder, just like the police had known all along. By then, other Dallas defense attorneys heard about Vega’s carload of sheetrock powder, and 18 other cases by the same informant were exposed as involving sheetrock powder.
The District Attorney’s Office dismissed the charges in all 18 cases together with 21 additional cases suspected of being tainted by the informant. Some had already pleaded guilty, however, and had to challenge their convictions separately, which highlights the fact that factually innocent people regularly plead guilty to crimes they didn’t commit because doing so represents the more attractive option when caught in a system that’s frequently more concerned about getting convictions than the truth.
“How could these field tests have been positive for drugs when there were no drugs?” Barbare asked rhetorically. She surmised that officers had hoped the defendants would just plead guilty before lab tests could be done, as is common in drug cases.
Defense attorneys pointed out that all of the 18 cases dismissed involved the same informant. “What I think is what a lot of people are thinking—that we have some dirty police officers in this city,” a defense lawyer for one of the defendants in the scandal said.
Also in Texas, former Burleson County District Attorney Charles Sebesta found himself in hot water with the State Bar for continuing to publicly declare that Anthony Graves committed murder, even after Graves was freed from prison because Sebesta purposely withheld favorable evidence from Graves in order to get a conviction.
Graves spent nearly 18 years in prison before being exonerated and receiving $1.4 million in compensation for what Sebesta did to him. However, Sebesta continued to declare that Graves was guilty—for 20 years—and nothing was done about it until Graves filed a complaint with the State Bar.
The Bar found “just cause” to sanction Sebesta, which was unusual given the Bar’s track record in 91 criminal cases where a prosecutor committed misconduct resulted in zero disciplinary actions against those prosecutors.
And once again in Texas, this time in Tulia, a tiny town of 5,000 in the Panhandle, 39 black people were arrested in 1999 by the same cop, Tom Coleman, on drug charges. When it came to light in 2003 that Coleman was accused of racial prejudice, a Dallas judge threw out all of the cases, and others arrested by Coleman were cleared by Governor Rick Perry.
Coleman, the judge said, was “the most devious, nonresponsive law enforcement witness this court has witnessed in 25 years on the bench in Texas.” The Court said Coleman had submitted false reports and misidentified various defendants during his investigations.
Coleman has since been charged with perjury, and the ACLU of Texas has urged lawmakers to pass a law to prevent convictions based solely on one officer’s statement without further evidence.
Recent News Stories
Recall the scandal at the OCDA Office involving the corrupt jailhouse informant program. One of the jailhouse informants, Mark Cleveland, exposed the program in an interview with 60 Minutes in 2017. Cleveland, a career criminal himself with admittedly over 100 arrests, told 60 Minutes that he was able to cut at least 40 years off his sentence simply by “ratting” on fellow prisoners.
“Snitches do lie every opportunity they have—if they need to, they will,” he said. “It’s about getting outta jail. What do I have to do to get outta jail?”
Cleveland told 60 Minutes that he was part of a secret and tightly organized network of informants in the Orange County jails. He said guards would place snitches like him near high-profile prisoners and then guide them on what to dig for to bolster prosecutors’ cases.
He said, for example, a guard would put him in a cell with a prisoner and say, “We want him on murder,” and that “if you could give us any information on that, I’ll personally walk you out of the jail.” Cleveland showed 60 Minutes a briefcase full of notes and evidence on every snitch case he had done. He kept meticulous notes on dozens of cases, so he could report on the prisoners he was targeting.
Cleveland even mentioned Tony Rackauckas, the OCDA prosecutor who denied that his office had a jailhouse informant program. “I was working right there with Tony,” Cleveland said. “I would call him up and he loved it.” When asked about Cleveland’s statements, Rackauckas told 60 Minutes that his memory of Cleveland “is not that clear.”
After snitching on prisoners in dozens of cases, Cleveland decided to snitch on the prosecutors, exposing the OCDA scandal on national TV. There’s an element of poetic justice in that.
In Louisville, Kentucky, Isaiah Jenkins was charged with the shooting death of George Brown during a drug buy the week before Christmas 2016. Jenkins’ codefendant, Derrick Taylor, agreed to testify against Jenkins as part of the plea deal. Taylor said Jenkins got into an argument with Brown and shot him.
A recording of Taylor admitting to a family member that he lied to prosecutors and that he considered it all a “game” came to light. The state took back its plea offer to Taylor, and Jenkins asked that the charges against him are dropped.
“It is well known that heavily incentivized informant testimony is a leading cause of wrongful convictions,” Jenkins’ lawyer said. Taylor’s testimony was the primary evidence the state had against Jenkins.
The City of Louisville also paid out $7.5 million in early 2018 to Kerry Porter, who spent 11 years in prison based in part on the false testimony of two jailhouse informants.
Nevertheless, the city defended its use of jailhouse snitches, saying that it “encourages” such activity, and it uses jailhouse informant testimony only if it is “determined to be credible and can be corroborated.”
In July 2018, Arkansas prisoner Lacquanda “Faye” Jacobs was released from prison after 26 years based on the testimony of an incentivized witness who later recanted his story when he was arrested on charges of his own. The witness’ testimony was the sole evidence used to convict Jacobs.
Facts and Figures
A 2014 Northwestern University study found that almost half of the wrongful convictions in death penalty cases were based on false testimony of incentivized witnesses, making snitches the leading cause of wrongful convictions in capital cases. By 2016, the National Registry of Exonerations found that 81 of 116 death penalty exonerations involved perjury or false testimony by incentivized witnesses, an increase up to 70 percent. Barry Scheck’s Innocence Project found that 25 percent of DNA exonerations involved the knowing use of false incentivized witness testimony, and 11 percent involved the use of coerced witness testimony.
Families Against Mandatory Minimums noted in 2010 that the threat of mandatory minimum sentences coerced 25 percent of defendants to cooperate with law enforcement in hopes of persuading the government to file a motion for a sentence below the mandatory minimum, since only a motion by the government can get around a mandatory minimum sentence.
Studies on Incentivized Witnesses
Numerous studies have been conducted on incentivized witnesses, including their effect on wrongful convictions, why they decide to cooperate with the government, and what it takes to persuade someone to become an incentivized witness.
While the studies went about their findings in various ways, they all came to the same conclusion: offered an incentive to do so, most people, even honest people, will lie in exchange for some benefit.
In a 2017 study led by University of Arizona law professor Christopher Robertson, two experiments conducted on hundreds of people showed that 20 percent of one group would lie as a witness for the government in a case against someone else to obtain leniency for an unrelated offense, and 55 percent in another study group would lie against one of their codefendants in order to get leniency.
The vignette-based experiments conducted by Robertson and his colleagues showed that non-criminals elected to lie at a rate shockingly higher than one might have expected. At the same time, they recognized that their experiments actually underestimated the rate jailhouse informants would testify falsely for the government. They based this conclusion on the fact that jailhouse informants would be even more inclined to lie than the average person—because that is what criminals do, they said.
Researchers at the University of Arkansas in 2009 found that an offer to students to get out of having to complete another assignment resulted in about one-third of them providing false testimony against someone, even when they were told that the person had not committed the offense.
The researchers said this result was not surprising since incentive is a “selfish motivation.”
In addition, researchers at the Bluhm Legal Clinic at Northwest University School of Law said studies show incentivized witnesses lack confidence in themselves, crave attention, and have a need to feel important.
Race also plays a major role. In two studies done in the mid-1990s, researchers found that blacks are generally seen as less credible than whites and that juries are less persuaded by blacks testifying against other blacks than by whites testifying against black defendants.
Unsurprisingly, researchers across the board found that informants who did not receive an incentive were more objective and more honest in their testimonies.
Sources: snitching.org, washingtonpost.com, texasmonthly.com, aclu.org, reviewjournal.com, wdrb.com, arktimes.com, law.uw.edu, innocenceproject.org, albanylawreview.org
Additional Sources: “Incentivized Informants, Brady, Ruiz, and Wrongful Imprisonment: Requiring Pre-Plea Disclosures of Material Exculpatory Evidence” by Markus Surrat, Wash. L. Rv. 93 (2018); “Beyond Unreliable: How Snitches Contribute to Wrongful Convictions,” by Alexandra Natapoff, Golden Gate Univ., L. Rev. 37; “The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decision Making” by Jeffrey S. Neuschatz, et al., Law and Human Behavior 32.2 (2008); “Soft Words of Hope: Giglio, Accomplice Witnesses, and the Problem of Implied Inducements,” by Michael R. Cassidy, NW Univ. L. Rev. 98 (2003); “The Snitch System,” NW Univ. School of Law Center on Wrongful Convictions; “Incentives, Lies, and Disclosure,” by Christopher T. Robertson and D. Alex Winkleman, Univ. of Penn. J. of Const’l Law 20 (2017); “Incentives Increase the Rate of False but not True Secondary Confessions from Informants with an Allegiance to a Suspect” by Jessica K. Swanner and Denise R. Beike, Law and Human Behavior 34.5; Attributions in the Courtroom: The Influence of Race, Incentive, and Witness Type on Jurors’ Perceptions of Secondary Confessions” by Evelyn M. Maeder and Susan Yamamoto, Psychology, Crime & Law 23.4 (2017); “Triple Exoneration: Charges Dismissed Against Three Men Wrongly Imprisoned on Testimony of Informant,” School of Law, Univ. of Washington; “Actual Innocence and Wrongful Convictions” by Brandon L. Garrett, Duke Univ. School of Law (2017); “Understanding Snitching” by Families Against Mandatory Minimums; “‘Than That One Innocent Suffer’: Evaluating State Safeguards Against Wrongful Convictions” by Robert J. Norris, et al., Albany Law Review (2011); Illinois Compiled Statutes 5/115-21 (2003)
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