Scott Dekraai, the man behind the worst mass shooting in Orange County, California, history, may avoid the death penalty because prosecutors illegally obtained evidence from a paid jailhouse snitch. As the Orange County Register reported this week, Dekraai's lawyers and the judge overseeing the case allege that the informant, a Mexican mafia leader named Fernando "Wicked" Perez known for cooperating with prosecutors, was part of a shady long-term project meant to gather as much evidence as possible against high-profile defendants—even when they weren't in an interrogation room.
California policies on the use of jailhouse informants to convict criminal defendants are relatively strict, and for good reason. Because they can receive reduced sentences in exchange for their testimony, jailhouse snitches have every incentive in the world to claim that they heard a defendant confess to a crime. To counteract this, the California Department of Justice requires that the senior assistant state attorney general approve the use of each jailhouse snitch based on the existence of a recording of the informant receiving the confession—as well an assessment of whether the individual has a record of reliability or might have inside information. Furthermore, a 2011 California law bans the use of informants whose testimony is uncorroborated.
These laws were the result of a culture of snitch testimony in the 1980s, when in California alone at least 225 cases involving jailhouse informants had to be re-examined, as the New York Times reported back in 1989. A man named Leslie Vernon White was at the center of the mess. He offered testimony in at least a dozen cases, each time claiming to have heard the defendant confess to the crime. As a result, he was furloughed, during which time he beat his wife, pulled a knife on his landlady, and stole a purse. To mitigate his punishment, White essentially informed on himself, explaining to the police how he had made a career as a jailhouse snitch. The scheme boiled down to White calling up a specific case's prosecutor posing as an LAPD sergeant. The prosecutor would describe the particulars of the case to White, who would then call the prison's bailiff, this time posing this time as a DA, ordering that he and the prisoner he was trying to snitch on be transferred to court for interviews. That way, he had the who/what/where/when/why of the case, as well as a record that he and the poor guy he was about to inform on had been in the same place at the same time.
When White explained what he had done on 60 Minutes in 1989, more than a few Californians thought tougher rules needed to be enacted to allow a jailhouse snitch to testify. But despite the state's efforts, malfeasance with jailhouse snitches continues. Which begs the question: If they're such a hassle, and entail the risk of having a case thrown out, why do prosecutors still use them?
For one, they're incredibly effective at securing convictions. Juries tend to find confessions very compelling, and it seems wrong to disallow testimony of a confession just because the person doing the testifying is in prison. Hardline anti-snitch advocates might prefer that informants only be used if they have not been given any reward for their testimony, but this too seems too extreme—there are very real consequences in the criminal underworld for snitching, and relying on the public-spiritedness of convicted people isn't likely to bear fruit.
The effectiveness of jailhouse informant testimony is also precisely why it is so dangerous. Evidence of this effectiveness that paints the practice in a decidedly negative light comes from the Innocence Project, which claims that "in 15 percent of wrongful conviction cases overturned through DNA testing, statements from people with incentives to testify... were critical evidence used to convict an innocent person." That figure, while terrifying, combines both jailhouse informants and co-defendants who snitch on their partners in exchange for a lighter sentence. But the situation is even darker when restricted to death row cases. According to a 2005 report by the Northwestern University Center on Wrongful Convictions, of 111 death row exonerations since the 1970s, 51 were men convicted with the help of testimony from "witnesses with an incentive to lie."
False testimony is the leading cause of wrongful conviction among men on death row. That's why the Innocence Project emphasizes the importance of declaring any benefits jailhouse informants receive and allowing judges to explain to the jury that snitches should be seen as potentially unreliable. The Center on Wrongful Convictions' recommendations are similar, with an emphasis on only admitting testimony about conversations if those conversations have been recorded.
These proposals are popular among reformers; the American Bar Association's Criminal Justice magazine supported them in 2003, along with the idea of using expert testimony to further communicate to jurors that snitches have been found unreliable in the past. Pew Trusts' the Justice Project adds that jurors should be made aware of the background of the jailhouse informant, including his criminal history (which is never spotless) and whether he is a "career informant" who has been used by prosecutors in the past.
These all sound like reasonable proposals that should limit the harm done by jailhouse informants while still allowing the prosecution to use them in support of the truth. Even the most ardent reformers can't reasonably ask that they be banned entirely, as the idea of defendants gleefully recounting their crimes to cellmates in the full knowledge that they cannot testify against them is unpalatable. But even these reforms cannot overcome the human fallibility of jurors.
In a fascinating pair of recent papers, University of Alabama in Huntsville Professor Jeffrey Neuschatz and his co-authors tested the effectiveness of jailhouse informants through a series of experiments. In a 2008 paper, the authors had a sample of college students and community members read an abbreviated transcript of a trial. Some of the subjects read a transcript that included the testimony of a jailhouse informant to whom the defendant had confessed his crime privately—crucially, there were two versions, one in which the informant received a benefit for his testimony and another in which he did not—while the control group's transcript had no such testimony. Overall, the addition of this "secondary confession" raised the average rate of conviction to 71 percent from 30 percent in the control settings. The subjects did not, however, seem to care whether the informant was benefiting from testifying: The difference in conviction rates between those two samples was not statistically significant. Because this is somewhat surprising, the researchers performed a second experiment in which the incentive was made more explicit (the transcript included a question to the informant as to whether he got five years off his sentence in exchange for testifying, and the snitch responded, "Yes sir, I did."). But again, the experimental jurors were no less likely to convict in the face of an obvious conflict of interest.
The results of a 2012 follow-up study are even more surprising. Using a similar setup, there were two new manipulations: the addition of an expert witness who testified to the unreliability of jailhouse snitches, or the addition of information that the snitch who was testifying had similarly testified (with a benefit) either zero, five, or 20 times in the past. Astonishingly, the jurors remained unshakable in their trust of the jailhouse snitch, and none of the information that might have caused them to doubt his credibility had any impact. Previous studies had testified to the effectiveness of confessions in swaying juries, and even though this confession was communicated secondhand by someone the jurors were prompted to view as unreliable, the strength of the confession dramatically increased the conviction rate.
Although evidence from studies like these is less than definitive, it does cast doubt upon the effectiveness of even the more extensive precautions a state like California has enacted. And that makes the behavior of the DA's office in the Dekraai case even more troubling. Dekraai seems to be dead-to-rights guilty of a heinous crime, but he may go through several more years of litigation because the snitch's testimony against him was illegal. Though some might dismiss that as a bullshit legal technicality, making sure all the rules are followed is important, even and perhaps especially if the cops are trying to strengthen a case against someone they strongly suspect is guilty.
Just look at the case of Steven Manning.
Sentenced to death for murder in 1993, former Chicago cop Manning's conviction hinged on the testimony of Tommy Dye, a jailhouse informant with ten felony convictions and a dozen nicknames (including "William Zonka"). In exchange for testifying that he had heard Manning confess, Dye got off eight years chopped off his sentence. And the testimony itself was somewhat suspect: Dye claimed to have captured the confession on a tape recorder provided by the FBI, but according to a report in the Chicago Tribune, when he went to play the tapes in court, the confession wasn't there. Dye explained this away by claiming the confessions existed in two small blips in the recordings, "one caused by a malfunction, the other by Dye bending over inadvertently and covering the microphones tucked under the waistband of his underwear," as the paper put it. Manning's conviction was eventually overturned.
But Manning, it turns out, was an unsavory character after all. After his release, he changed his name to Steven Mandell and got into some nasty stuff: In February of last year, the Associated Press reported that he was "convicted of plotting to kidnap, torture, extort money, and then kill and dismember Riverside businessman Steve Campbell in an office he and an accomplice had equipped with saws and a sink in which to drain the person's blood."
So as terrible as being wrongly convicted because of a snitch's testimony might be, the scariest part of cops and prosecutors not following the law surrounding the use of jailhouse snitches—as appears to have happened in the Dekraai case—is that guilty people might catch a break.
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