Death Row and 'The Rat Trap'
Death row exonerations expose failings of the ‘snitch system’
By Christopher Moraff
Since 1973, 129 innocent people were released from death row -- more than 50 of whom were sentenced to death based partly or wholly on false informant testimony.Levon Jones is supposed to be dead.
If the state of North Carolina had its way, Jones, 49, would have been strapped to a gurney years ago, hooked to an IV and pumped full of a lethal, three-drug cocktail until he asphyxiated.
Instead, on May 2, he walked out of prison a free man after spending 13 years on death row, and another 24 months locked up awaiting retrial — all for a murder he almost certainly did not commit.
Jones — known to friends and family as “Bo” — was released with the help of the American Civil Liberties Union’s (ACLU) Capital Punishment Project after the prosecution’s star witness recanted her testimony against him. (Lovely Lorden, a former girlfriend, admitted she’d collected $4,000 in reward money in exchange for testifying against Jones.)
He was an easy target: an African-American ex-con with a history of mental illness and violent behavior. When Lorden came forward with her story — a full three years after the 1987 shooting of a local bootlegger named Leamon Grady — Jones was doing time on an unrelated assault charge.
The prosecution felt little obligation to question the veracity of Lorden’s claim. And if the witness is to be believed today, investigators actually helped her keep her story straight.
As a result of Lorden’s testimony — and despite the lack of physical evidence tying him to the crime — a jury convicted Jones in 1993 and he was sentenced to die for Grady’s killing.
What Jones’ attorneys didn’t know at the time — and, as it turns out, didn’t really bother trying to uncover — is that Lovely Lorden had made something of a career out of testifying against people close to her. By her own admission, she has aided law enforcement in dozens of investigations and says she helped police make cases against several other boyfriends, as well as her own brother and sons.
What’s more, her work as a confidential informant didn’t stop after Jones was sent to death row. Jones’ attorneys sent In These Times copies of receipts that show Lorden was paid money at least seven times for her work as a confidential informant from December 2003 to April 2004, while Jones sat in jail.
Today, Lorden contends she testified against Jones under pressure from the police, in particular Dalton Jones (no relation), the lead officer in the case.
That doesn’t surprise Jones’ ACLU attorney, Brian Stull, who says it’s not uncommon for police to find a suspect first and worry about making a case later.
“I think often times they look at the usual suspects,” Stull says. “I think Dalton Jones was thinking, ‘This is a dangerous person, and whether he did it or whether he didn’t, I’m going to get him off the street.’ “
Jones owes his freedom in part to an astute federal judge who sensed something amiss with Lorden’s testimony during a 2006 penalty appeal.
In granting Jones a new trial, U.S. District Judge Terrence Boyle, of the Eastern District of North Carolina, noted Lorden’s statements to police were “riddled with inconsistencies” and “reflect that Lorden is unable to fairly and reliably describe the circumstances of the offense.”
Unfortunately, the case of Levon Jones is not an anomaly. He is the fifth death row prisoner to be exonerated in the past year. Since December, North Carolina alone has released three inmates from death row after it was determined that they did not commit the crimes for which they were convicted. Of these three men, two, including Jones, were convicted on the false testimony of snitches.
The other, Jonathon Hoffman, was released in December 2007 after spending seven years on death row. His freedom came when the prosecution’s key witness — Hoffman’s cousin — admitted that he had lied to get back at Hoffman for stealing money and had been both paid for his testimony and given a reduced sentence for bank robbery. At the time of Hoffman’s trial, prosecutors withheld the deal from defense attorneys, the jury and even the judge.
A recipe for disaster
In a country where more than one out of every 100 citizens is now incarcerated, criminal justice advocates are scrutinizing the way in which police and prosecutors go about getting the information to pursue and prosecute suspects. This inquiry has increasingly focused on the extent to which incentivized informants and jailhouse snitches are contributing to the convictions of innocent people.
A cursory review of the Jones case would be enough to suggest something is wrong. But a thousand Levon Jones stories don’t elicit the same amount of outcry as one Kathryn Johnston case does.
In November 2006, Atlanta police gunned down Johnston — an elderly Atlanta grandmother — inside her home. The officers, who were from the city’s narcotics task force, claimed to be acting on information they received from a confidential informant that drugs were being sold from the house. That allegation turned out to be false.
The Johnston tragedy shined a spotlight on the cavalier use of informant information to obtain arrest and search warrants. The Justice Department launched a federal probe and, nine months after the shooting, in July 2007, the House Committee on the Judiciary held a hearing on law enforcement’s use of confidential informants.
“We’ve got a serious problem here that goes beyond coughing up cases where snitches were helpful,” said committee chair Rep. John Conyers (D-Mich.) at the hearing. “The whole criminal justice system is being intimidated by the way this thing is being run, and, in many cases, especially at the local level, mishandled. … A lot of people have died because of misinformation.”
It isn’t known if any of those people have died at the hands of the state; but judging by some of the relevant corollary statistics, it’s plausible that some have.
Falsified informant testimony accounts for nearly half of all wrongful convictions in capital cases nationwide, according to data from Northwestern University Law School’s Center on Wrongful Convictions. Since 1973, 129 innocent people were released from death row — more than 50 of whom were sentenced to death based partly or wholly on false informant testimony, according to the Center.
Alexandra Natapoff, an associate professor of law at Loyola University and one of the country’s foremost authorities on the problems with paid informants, thinks that’s just the tip of the iceberg.
“We have the most data on capital and homicide convictions because they are the most high profile,” she says, “so we have no idea how many wrongful convictions there are in larceny cases or assault cases or any other because nobody is paying any attention to those.”
Natapoff has written extensively on the role of snitch testimony in wrongful convictions and says that informants have become law enforcement’s investigative tool of choice.
“The government’s use of criminal informants is largely secretive, unregulated and unaccountable,” she says. “This lack of oversight and quality control leads to wrongful convictions, more crime, disrespect for the law and sometimes even official corruption.”
She continues: “If the criminal system can’t get homicide cases right, then it’s very unlikely that we’re getting other things right.”
A broken system
With the expansion of the “war on drugs” during the crack epidemic of the late 1980s, police began to abandon traditional investigative work in favor of insider cooperation. Cops say it’s almost impossible to make a drug case any other way. But critics say the practice has led to a “dumbing down” of police work across the board.
“The drug war has eroded law enforcement practices,” says investigative reporter Ethan Brown, whose recently published book, Snitch: Informants, Cooperators and the Corruption of Justice, traces the genesis of the informant culture and its effect on communities.
Those who study the snitch culture trace the problem to a criminal justice policy that has created the perfect atmosphere for what Brown calls the “cooperator institution” to thrive.
Most notably, Brown says, federal sentencing guidelines, adopted in 1987, have exacerbated the growth of the cooperator institution over the past two decades. Until a 2005 Supreme Court ruling gave judges more flexibility in sentencing, the guidelines made cooperating with authorities the only real option for defendants seeking leniency.
“Those guidelines really forced drug defendants into cooperating,” says Brown. “Very few people will look at that kind of prison time and not cooperate.”
But over the years, a practice once confined mainly to drug investigations has become standard operating procedure for the prosecution of all kinds of crime.
The reasons are myriad, but the simple matter of resources looms large. In a system severely taxed by an unwinnable drug war, relying on informants is a cheap and easy investigative option. It can cost thousands of dollars to house, feed and protect an actual witness until trial, and, depending upon the offense and the defendant, such protection can carry on for years after conviction. By contrast, criminal informants are often compensated with leniency or are paid small sums, and often simply released into the same streets from which they came.
“It’s all about this staggering misallocation of resources,” says Brown. “We have this incredible institution for cooperators and informants, yet, for the kind of cooperating we need the most, there are really no resources.”
This mutually beneficial relationship between police officers and their informants is what Natapoff calls “a disturbing marriage of convenience.”
Prosecutors and police know the pitfalls, but in many cases write them off as the cost of doing business and making cases.
In a 1999 study published in the Fordham Law Review, Ellen Yaroshefsky, a law professor from the Benjamin N. Cardozo School of Law, interviewed a number of assistant U.S. attorneys from the Southern District of New York and found that while most said they made every effort to be diligent in assessing the veracity of informants, they admitted it’s easy to get in too deep and lose objectivity.
In her study, Yaroshefsky described this as “fall[ing] in love with their rat.”
“You’re not supposed to, of course. You are trained to maintain your objectivity,” an anonymous participant in Yaroshefsky’s study said. “But you spend time with this guy, you get to know him and his family, you like him. You believe that he has come clean. Hopefully the assistant has a skeptical mindset, but the reality is that the cooperator’s information often becomes your mindset.”
Still, other times investigators are already working under an assumption of guilt and are simply seeking confirmation.
“[Sometimes] prosecutors are convinced they have the guilty guy, then they go about seeking to convict and do not carefully look at things that are funny about their case,” one of Yaroshefsky’s sources said.
Former prosecutor and now Howard University law professor Andrew Taslitz says that when he started out in the Philadelphia district attorney’s office, his youth and ambition often clouded his judgment when it came to reliance on informants who had received incentives. He says he thinks his experience is the norm.
“Most prosecutors are very, very young, especially at the state level,” Taslitz says. “They’re new graduates of law school or they’ve done some other job for a few years but they’re mostly in their late 20s, early 30s tops, with very little experience. It’s one of the reasons that office policies that just tell them what to do are so important.”
Another problem is that many of the assumptions that courts make about how witness testimony is received simply don’t pan out.
The Supreme Court established the constitutional basis for using paid informants in 1966 with U.S. v. Hoffa, which decided that rewarding a witness for testimony does not violate due process. In its opinion, the court wrote: “The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross examination, and the credibility of his testimony to be determined by a properly instructed jury.”
But Natapoff says, in practice, those mechanisms are deeply ineffective at protecting defendants from lying informants.
“Let’s say the government does disclose [compensation] and the jury knows about it,” she says. “You would think, and the Supreme Court certainly thinks, that that will make a difference. Well, psychological research has found that it makes almost no difference, that jurors ignore the fact that the witness is compensated.”
And that’s only for the cases that go to trial. Because 95 percent of criminal cases are resolved through plea agreements, defendants rarely get the chance to challenge an informant’s story or credibility.
“The Supreme Court has held that while defendants who go to trial are entitled to impeachment material about their informants, defendants who plead guilty are not,” Natapoff says. “So that means that most defendants will never see the deal that the informant got.”
In spite of all the potential pitfalls, police and prosecutors say the benefits of informants outweigh the potential for abuse.
Ronald E. Brooks, president of the National Narcotic Officers’ Associations’ Coalition, calls informants “indispensable investigative assets” and cautions against issuing a blanket judgment on the use of confidential informants by police officers for “a few instances of mismanagement or wrongdoing.”
“When we appropriately manage informants, great cases, ones that make our community safe are the result,” he says. “When informants are improperly used, the results can be devastating. But without the ability to freely use informants, law enforcement would have very few significant investigative successes.”
A call for reform
Since the 2007 House Judiciary Committee hearing in the wake of the death of Kathryn Johnston, little headway has been made in reforming the practice of using incentivized informants to send people to jail — and, possibly, execution.
According to the American Bar Association (ABA), 18 states now require corroboration of an accomplice’s statements. Those that require corroboration for other forms of incentivized witnesses, however, are few and far between.
Illinois currently mandates corroboration in capital cases, and courts in Nebraska and Oklahoma have required corroboration for jailhouse snitches. Texas, meanwhile, has a different requirement, not for jailhouse snitches, but for undercover drug operatives working for the police.
Criminal justice reformers say they want to make sure police and prosecutors are following protocol in how and when they use paid or incentivized informants.
Taslitz, who serves in the ABA’s Criminal Justice Section, says more transparency is needed during the discovery phase. For example, he’d like to see defendants who are negotiating a plea agreement have access to the information and witnesses being used against them.
In a 2005 ABA resolution that Taslitz helped write, the association urged federal, state and local authorities to require that informants meet certain standards of credibility and that courts mandate corroboration in all cases that involve jailhouse snitches.
But so far there has been little in the way of reform.
“It’s a slow process,” Taslitz says, “and it doesn’t have to necessarily be a matter of legislation, but it could be a matter of individual prosecutors’ offices adopting specific policies; it can be a matter of local ordinances; it can be case law where judges start to intervene. It’s a slow process and, as of yet, there is no uniform informants act.”
For cases that do go to trial, Natapoff has been pushing for “pre-trial reliability hearings” as a potential remedy. Under such a system, the burden would be on the government to prove witness reliability by a preponderance of evidence. Courts would be required to consider such factors as the criminal history of the informant, any compensation for their testimony, and other cases in which the informant has testified, among other things.
“Given the prevalence of informant falsehoods in wrongful capital convictions, such hearings should be mandatory in capital cases, even where the defense intends to concede guilt and move directly to the sentencing phase,” Natapoff says.
Considering that for every innocent person convicted of murder, a real murderer escapes justice, requiring such checks and balances is as much a victim’s rights issue as a matter of criminal justice.
For his part, in spite of losing a decade and a half of his life, Levon Jones says he holds no grudge against the snitch that put him on death row.
Rather, he attributes his ordeal to a miscarriage of justice.
Says Jones: “It was the system itself.”
Source / In These Times / Posted July 30, 2008
The Rag Blog
