This piece is the fourth in a series on defects in our criminal justice system that lead to wrongful convictions. The first piece introduces these seven critical breakdowns in the rules of constitutional criminal procedure, the second examines the problem of eyewitness misidentification and the third shows how the Supreme Court is perpetuating the problem of false confessions.
Our criminal justice system has always had an ambivalent relationship with criminal informants who cooperate in exchange for better treatment from the state. On the one hand, every actor in the system—police, prosecutors, defense attorneys and judges—understand that they’re acting in complete self-interest: Whether they’re inmates who double-cross fellow convicts or accomplices who sell out their partners in crime, informants are turncoats who seek to benefit from disloyalty and underhandedness. They often turn against close friends or even family members. There’s a reason why the deepest circle of hell is reserved for faithless friends in Dante’s “Inferno.”
On the other hand, snitches undoubtedly help secure convictions. It’s easy to understand the value of these informants: They usually know the details and motivations behind their crimes and those of their confederates better than anyone else and, because they’re trusted among criminals, they have access to information otherwise unreachable to police. Snitches give investigators direct access to the innerworkings of the criminal milieu that they inhabit. After repeated “not guilty” verdicts, media gave Gambino crime family boss John Gotti the nickname the “Teflon Don.” Prosecutors simply couldn’t make the charges against him stick. However, after they flipped his underboss, admitted murderer Sammy “The Bull” Gravano, they put Gotti away for life.
The upshot of this ambivalence, though, has been an explosion in our criminal justice system’s reliance on snitches. As mass incarceration has surged over the past several decades, police and prosecutors have come to rely on stool pigeons so completely that without them, our criminal procedure would be entirely different.
A Perverse Symbiosis
Police and prosecutors are often under tremendous pressure—from their superiors and the public—to make arrests and secure convictions. The competitive nature of litigation can cause tunnel vision, confirmation bias and, in some cases, a willful indifference to the truth that causes them to rely on criminal informants they either know or should know can’t be trusted.
A counterintuitive and perverse symbiosis often develops between crime fighters and the criminal informants with whom they partner. They work intimately together and realize quickly that they need one another. It isn’t unusual for cops and snitches to cultivate longstanding relationships, even friendships, whereby cops leave reliable snitches on the street for years, with full knowledge of their ongoing criminal activities, until they’re needed to testify or otherwise no longer useful. Rewarding snitches for their “service” to the government is such a routine part of our federal criminal justice system that it’s been codified into the Federal Rules of Criminal Procedure.
Because bribery is a crime, criminals who get arrested can’t directly pay prosecutors to drop or reduce the charges against them with money. However, they’re positively encouraged to do so with another kind of currency: information. Useful prosecutorial information is the coin of the realm in our jails and prisons. Criminals know that prosecutors will cut deals with anyone, no matter what their crime or how loathsome their character, if that which they report is helpful enough. In 2003, serial killer Gary Ridgway, who tortured and killed enough women to fill a small cemetery, traded secrets with the state of Washington to escape the death penalty. Nine years earlier, Washington had hanged Charles Rodman Campbell, convicted of 45 fewer murders than Ridgway, but with no useful information to share.
While the Ridgway case illustrates that prosecutors will reward even the worst criminal who can trade information, it was exceptional in two important ways. First, unlike the vast majority of snitches, Ridgway wasn’t required to help imprison or execute a fellow criminal. Instead, prosecutors wanted information that would help them solve more of Ridgeway’s own murders, especially the locations of the bodies of missing victims. In this way, prosecutors rewarded Ridgway for his skill at concealing his crimes.
Second, unlike nearly every other criminal informer, Ridgway had no incentive to lie or embellish the facts he provided. His sentence of life imprisonment had been arranged prior to his cooperation. If anything, failing to follow through with reliable information would’ve jeopardized the leniency for which he’d succeeded in negotiating. But most defendants and convicts, facing prison or death and desperate for favors, encounter no such risk and are undeterred from fabricating stories. To them, any story they can sell to authorities in exchange for leniency, true or false, serves their purposes.
Why We Can’t Trust Snitches
Defense attorney Leslie Abramson, famous for defending patricidal killer Erik Menendez, describes the use of snitches as “an unholy alliance between con-artist convicts who want to get out of their own cases, law enforcement who’s running a training ground for snitches over at the county jail, and the prosecutors who are taking what appears to be the easy route, rather than really putting their cases together with solid evidence.” But the advent of DNA in forensic science has poked a significant hole in this system: The DNA revolution in criminal forensics has confirmed that criminal informant testimony can’t be trusted and regularly results in wrongful convictions.
Seventeen percent of the 367 inmates the Innocence Project has used DNA evidence to exonerate were convicted because of jailhouse snitch testimony. However, it is in capital cases that snitches wreak the most havoc. According to a study by the Northwestern University Law School Center on Wrongful Convictions, nearly half of the 111 death row exonerations (45.9%) between 1973 and 2004 involved inmates convicted due to false stool pigeon testimony. For instance, jailhouse snitch Johnny Webb testified that Cameron Todd Willingham, executed in 2004 for the arson murder of his three daughters, confessed to him while in jail awaiting trial. In exchange for his testimony, Webb’s aggravated robbery charge was reduced to second-degree robbery. Willingham died protesting his innocence and was later exonerated.
It’s pretty clear why singing canaries like these can’t be trusted. Criminals are often scofflaws who think little of lying under oath to better their own situation. Sometimes, snitches use false testimony to cover up the fact that they themselves committed the crime they’re pinning on someone else. The false testimony of David Ray Harris, who murdered a police officer in Texas in 1976, helped put the innocent (and later exonerated) Randall Dale Adams on death row for the crime that Harris himself had committed. In 1988, Dennis Fritz and Ron Williamson were convicted of brutally slaying Debbie Carter in Oklahoma—and her real killer, Glen Gore, testified against them both. Both Fritz and Williamson were later vindicated by DNA testing (the latter after a long stint on death row). In England, Timothy Evans was hanged in 1950 for the murder of his pregnant wife. Notorious necrophile serial killer John Christie—and Evans’ neighbor at the time of the murder—had been the star witness against Evans at the trial. But not long after the execution, police learned that it was Christie who had strangled Evans’ wife the year before. This wrongful execution helped spur the abolition of the death penalty in England.
In many instances, police and prosecutors recruit criminal informants to spy or testify in the first place because the case against their target is weak and they fear losing at trial. In an attempt to build a case against Donnie Ray Ventris for the 2004 murder of Ernest Hicks, for instance, Kansas law enforcement placed an informant in the cell of a man a jury eventually found not guilty of the crime. Police instructed the snitch, Johnnie Doser, to “keep [his] ear open and listen” to his new cellmate. Predictably, Doser returned to authorities with a compelling, incriminating story to tell. He claimed that Ventris had admitted to him that he had shot the victim after he’d “went to rob somebody and that it went sour.” The state reduced Doser’s punishment in exchange for his testimony. While Ventris was acquitted of murdering Hicks, the jury, possibly influenced by Doser’s testimony, convicted him of the lesser crimes of aggravated burglary and aggravated robbery.
The Supreme Court’s Inaction—and the Need for Credibility
The Supreme Court has always been aware of the special dangers criminal informant testimony pose to the truth-seeking function of criminal trials. Our ancient common law tradition generally barred the testimony of convicted felons as incompetent. In a 1909 case involving an accomplice-turned-snitch, a unanimous court recognized that “the evidence of such a witness ought to be received with suspicion, and with the very greatest care and caution.” In 1952, the court, again unanimously, found that “[t]he use of informers, accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility.” However, in neither of these cases did the court believe that the problem, though genuine, rose to the level of violating the constitutional rights of the accused.
In 1966, the court upheld the conviction of notorious Teamsters President Jimmy Hoffa for jury tampering, even though the government’s chief witness was, in the words of Chief Justice Earl Warren’s dissent, “a jailbird languishing in a Louisiana jail under indictments for such state and federal crimes as embezzlement, kidnapping, and manslaughter (and soon to be charged with perjury and assault).” This “jailbird,” Edward Partin, had gotten himself a sweetheart deal from federal law enforcement in exchange for betraying Hoffa that included, again quoting Warren, “devious and secret support payments to his wife.” Once more, the court showed awareness of the problem but would not impose a constitutional exclusionary rule that would bar unreliable snitch testimony from the courtroom.
Throughout its history, the court has insisted that the traditional means of exposing false testimony—cross-examination by the defense and “careful instructions” to the jury by trial court judges—are enough to preserve the integrity of criminal trials. But the court has always failed to appreciate that, judicial instructions notwithstanding, snitches inherit the reflected credibility of the prosecutor who calls them to the witness stand and thereafter minimizes their faults and bolsters their trustworthiness throughout the trial. This can be more than even a skilled, experienced defense attorney can overcome during cross-examination, let alone the typical overworked and underfunded public defender assigned to most criminal defendants.
The court refused to modify its position in 2009 when it heard Donnie Ventris’ appeal of his aggravated burglary and aggravated robbery convictions, mentioned above, even in the face of new DNA and death penalty exoneration data showing that snitch testimony is one of the leading causes of wrongful convictions. In an opinion written by Justice Scalia on behalf of seven justices, the court upheld Ventris’ convictions and ignored his suggestion that the court should protect the constitutional right of defendants to a fair trial by requiring judges to conduct reliability hearings prior to letting incentivized criminal informants testify. These hearings would have been designed to bar testimony that, due to the character and likely ulterior motives of the witnesses, no reasonable juror could believe. In a footnote to the majority opinion in Ventris, the court rejected the arguments for creating constitutional protections, including reliability hearings, suggested in an amicus brief by the National Association of Criminal Defense Lawyers. The brief explained that some form of constitutional protection was urgently needed in light of the widespread harm caused by perjurious snitch testimony, which new DNA and death penalty data had substantiated. But the court was unmoved, saying that “our legal system … is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses, and we have long purported to avoid ‘establish[ing] this Court as a rule-making organ for the promulgation of state rules of criminal procedure.’”
While the court is right that, generally, it should be up to juries to determine whether to credit witness testimony, the law has always recognized that some forms of testimony are so obviously untrustworthy that their admission into evidence would steer juries away from the truth. Hearsay evidence, for instance, is routinely barred under state and federal rules of evidence. The court has also long recognized that certain other forms of testimony, like those involving coerced confessions and unnecessarily suggestive eyewitness identification procedures, raise constitutional concerns. In these cases, the court has required, as matter of constitutional due process, that trial court judges work as gatekeepers by conducting special hearings of the kind suggested by Ventris’ counsel to determine whether fundamental fairness should bar the evidence from going to the jury.
Reliability hearings are the least the court should do. A simpler, fairer rule would simply prohibit any convictions based on uncorroborated, incentivized criminal informant testimony as a violation of the defendant’s constitutional due process rights. Some states have shown initiative by modifying their own laws to include similar rules. Given the harrowing data on death penalty exonerations, the sooner such a rule is enacted the better.
The Supreme Court’s stubborn refusal to act in this area is causing more harm than just wrongful convictions and executions. By condoning the prosecutorial practice of rewarding career criminals with freedom and light sentences, the court is enabling recidivist offenders to escape justice and continue their life of crime. Convicted sex offender Darryl Moore worked as a paid informant for Cook County prosecutors determined to convict a Chicago drug kingpin. After testifying, he was released and brutally raped an eleven-year-old girl as she was walked to a grocery store. After testifying against John Gotti, Sammy “The Bull” Gravano, mentioned above, was convicted of operating a massive drug trafficking operation, which, naturally, police used snitches to dismantle.
The list of reoffending stool pigeons is endless. Cooperating with prosecutors doesn’t transform convicts into better citizens. At best, it merely teaches them to pay close attention to what their friends are up to so they have bargaining chips in their pockets the next time they get caught.
The deeper we dig into the causes of wrongful convictions, the more overwhelming the evidence that self-interested criminal informants routinely subvert the core purposes of our criminal justice system, pollute our courtrooms with lies, violate the rights of the accused and force the innocent to suffer punishment that should be reserved for the actual perpetrators, who are allowed to remain free—and often re-offend. The framers of the Constitution included the due process clauses of the Fifth and Fourteenth Amendments, in part, to ensure fundamental fairness in our criminal procedures. But by failing to act, the Supreme Court has instead left us with a fundamental problem.