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A snitch in time

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I was killing time over in court the other day, sitting around with a bunch of criminal defense attorneys, all of whom had been former prosecutors.  That's not an unusual career path; prosecutors get to try a lot of cases, and that's good experience for when you choose to move over to the Dark Side.  Anyway, the subject of snitches came up.  "Hey, Kev, you ever use a snitch?" one asked.

Kevin assumed a courtroom pose.  "Your honor, the State will call as its next witness the gentlemen in the orange jumpsuit."  Everybody laughed, and they all agreed that they'd never used a snitch.

That's Story #1.  Story #2 goes back about twenty years, when I got a call from a social worker over at county jail telling me that my client -- we'll call him Wilfred -- needed to see me right away.  I went over, and Wilfred told me he'd made friends with a guy in his pod who was charged with murder, and the guy had just happened to confess to Wilfred.  Wilfred wanted to know if this could be used for his benefit, and I told him that usually the cops will want to check Wilfred's story by finding out if he knew something about the crime that could have only come from the defendant, rather than from reading the newspaper.  No problem, said Wilfred:  the guy told him that he'd dumped the body in Lake Erie.  That's too bad, I said, because according to that morning's paper the cops had just found the body in an abandoned warehouse.

Of course, the cops don't always check to make sure the would-be snitch knows something he could have only gotten from the defendant.  In fact, it's not unheard of for cops to feed the snitch details of the crime that haven't been publicized just to give him added credibility. 

Which leads to Story # 3, that of David Ayers.  Back in 1999, Dorothy Brown, a 76-year-old woman, was brutally murdered in her apartment, apparently in the course of a robbery.  David Ayers, a security guard at the building, was charged with the killing.  Three days after the trial started, Donald Hutchinson, who was in jail awaiting trial on a passing bad check charge, as well as a probation violation stemming from a prior theft case, contacted the lead detectives in Ayers' case and told them Ayers had confessed to Hutchinson about the crime.  The detectives interviewed Hutchinson, and according to their notes found his story to be seriously lacking in key details.  They sent him back in to the cell with Ayers, and by the next day, voila!  Hutchinson had those details that were lacking.

Whether he got them from Ayers or from the detectives is a matter of some controversy.  Ayers was convicted, and spent 11 years in prison before the 6th Circuit granted him habeas relief, finding that Hutchinson's story "is both inconsistent and unreliable, [and] also strongly suggests, at a minimum, that the police shared information with Hutchinson."  Before Ayers' retrial, the State retested various items of evidence -- a pubic hair found in Brown's mouth, and a bloody towel -- and when Ayers was excluded as a contributor, it dismissed the charges.  Last week a Federal court awarded Ayers $13.2 million for wrongful imprisonment.

Story #3 is a rarity, if only because police needn't bother; juries seem quite willing to believe that people who commit dastardly crimes will eagerly confess them to somebody they've just met in a jail cell.  Which leads to Stories #4 through whatever:  you can find any number of cases like Ayers.  (Ayers' case is what prompted the discussion in Story #1.)  More than 15% of the wrongful convictions overturned by DNA testing involved snitch testimony, and that 15% included 38 people who were put on death row.  The classic case of the "incentivized witness" was Leslie Vernon White, who became sort of the Forrest Gump of the California prison system in the late 1980's, claiming to have been present when any number of defendants in highly publicized cases chose to confess their crimes to him. 

It turned out that White made it all up, having become highly skilled at finding out about the necessary details of crimes by the simple technique of calling the detectives from the jail and fishing for information.  When interviewed by Sixty Minutes, White joked that the snitch system had spawned slogans like "If you can't do the time, just drop a dime."  Those words were apparently taken to heart by Jerrell Bray, a snitch used by a DEA agent to round up drug dealers in the Mansfield, Ohio, area.  Bray's testimony sent at least fourteen people to prison before it was discovered that he was just making it up.

So what's to be done about this?  Obviously, more stringent self-regulation is in order.  Internal memoranda from the LA District Attorney's Office indicated that prosecutors ignored warnings from members of their own staff about White's credibility, and Richland police gave the same cautions about Bray to the DEA.  And one might hope that the stories of wrongful convictions might impact future juries' evaluation of a snitch's credibility.

But maybe not.  The appellate court in Ayers (at least one judge; the other concurred only in judgment, and the third dissented) took pains to note that "Hutchinson's entire criminal history, as well his possible motivations for testifying, were placed before the jury both on direct and cross-examination."  Fat lot of good it did Ayers. 

Under RC 2923.03(D), if an accomplice rolls over and testifies against the defendant, the jury is instructed that his testimony is "subject to grave suspicion," and should "be weighed with great caution."  The accomplice has the exact same motivations to lie as a snitch does -- expectation of a benefit like reduction or dismissal of charges or reduction of sentence.  A number of states treat snitch testimony the same way they treat accomplice testimony.  Texas, for example, requires corroboration of a snitch's testimony, and is considering legislation to completely bar the use of compensated criminal informants in capital cases.  Maybe it's time for Ohio to consider something along those lines.

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