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A snitch in time

Donald Hutchinson was a firm believer in the adage that when opportunity knocks, you answer.  Opportunity, in his case, arrived in the guise of becoming a cellmate in the Cuyahoga County Jail to David Ayers, who was to stand trial for murdering a 76-year-old woman.

The jury for Ayers trial was picked on November 22, 2000, the day before Thanksgiving.  The following Monday, the prosecution disclosed that it intended to call Hutchinson to testify that Ayers had confessed the killing to him.  That testimony played a crucial role in convicting Ayers.  It also played a crucial role in Hutchinson's life; in return for his cooperation two pending cases against him were dismissed, and not only was he not found to be a probation violator in a third case, but the probation in that case was terminated, and all fines and costs were vacated.

And on Tuesday, in Ayers v. Hudson, the 6th Circuit Court of Appeals granted Ayers' habeas petition, deciding that how Hutchinson came to testify didn't quite pass the smell test, provided some important instruction on right to counsel, ane even threw in a nugget on habeas actions.

Hutchinson had called the cops the Saturday before the trial was to begin, telling them that Ayers had confessed to him.  Two detectives interviewed him, and found him eager to testify, but lacking in the ability to convey important details of the crime, such as the murder weapon or the amount of money stolen from the victim.  They told him that the prosecutor would probably get in touch with him, and sent him back to the pod.  By Monday morning, Hutchinson was in protective custody, claiming to have obtained information from Ayers about the weapon and the money. 

Ayers appealed his conviction to the 8th District, which affirmed by 2-1 vote.  The Ohio Supreme Court denied review, and so Ayers trotted off to seek habeas relief.  Good luck with that.  The passage of the Anti-terrorism and Effective Death Penalty Act in 1996 created almost insuperable obstacles to habeas relief, not only procedurally, but substantively as well:  a Federal court couldn't grant relief on any claim adjudicated on the merits in a state court unless, essentially, the state's court decision was contrary to or an unreasonable application of a US Supreme Court decision, or was an unreasonable determination of the facts; the latter are "presumed correct absent clear and convincing evidence to the contrary."  The District Court denied relief, and the 6th Circuit deemed only one of the four issues Ayers raised worthy of review:  whether his right to counsel was violated by Hutchinson's obtaining his confession.

It first had to deal with the 8th District's decision affirming Ayers' conviction, because that had to be presumed correct as to the facts.  Well, no it didn't, it turns out:  the opinion was 2-1, but one judge concurred only in judgment.  Thus, "there is not a majority decision that articulates the reasoning of the state appellate court on Ayers’ Sixth Amendment claim," and the Federal court had a good bit more latitude as it proceeded to consider Ayers' 6th Amendment claim.

While most people think of confessions in terms of the 5th Amendment right against self-incrimination, there's a right-to-counsel component as well:  once criminal proceedings have been initiated, the defendant has a right to counsel at all "critical" stages, and interrogation is one of them.   Back in 1964, the Supreme Court held in Massiah v. US that the right to counsel is violated when law enforcement officers obtain a statement after the defendant's been indicted and in the absence of his attorney, and that applies to "indirect and surreptitious interrogations" by covert agents and informants. 

Although the 8th District lead opinion had found that Ayers volunteered the information about the money and the weapon, this was "demonstrably untrue":  Hutchinson testified that he questioned Ayers about those details.  The question, as both parties saw it, was whether Hutchinson was acting as an "agent" of the police when he asked those questions. 

A few circuits employ a "bright line" test:  "an informant becomes a government agent only when the informant has been instructed by the police to get information about the particular defendant."  The 6th Circuit decides to go with a broader approach:  a violation can be found where there exists "some evidence that an agreement, express or implied, between the individual and a government official existed at the time the elicitation took place."  In fact, the court decides, the question of agency isn't "dispositive":  the issue is whether the State "intentionally created a situation likely to induce Ayers to make incriminating statements without the assistance of counsel," which is a good bit broader.

 The key here is what happened on that Saturday night after the detectives interviewed Hutchinson.  And here's where things pretty much went off the rails for the State:  there were significant differences between what was contained in the police report of Hutchinson's initial Satuday afternoon interview, what he said in voir dire, and what he testified to at trial.  His voir dire, in fact, was nothing but a series of leading questions by the prosecutor eliciting things Ayers supposedly told Hutchinson, none of which were contained in the initial police report of Hutchinson's interview.  As the court put it,

at a minimum, Detectives Cipo and Kovach shared information in Ayers’ case with Hutchinson. At its worst, the evidence suggests that the police specifically instructed Hutchinson on what subjects to question Ayers and/or directed Hutchinson regarding what to say in his testimony.

Jailhouse snitches are one of the most pernicious problems of the criminal justice system; the Innocence Project found that in a fifth of the cases where the defendant was ultimately exonerated by DNA evidence, snitches played a major role in obtaining the wrongful conviction.  Alexandra Natapoff, author of the Snitching Blog, has written about the severity of the problem, and has even proposed adoption of a Daubert-style pre-trial reliability hearing for such testimony.  Until then, Ayers is at least a step in the right direction.

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