The Bar Looks at Informants

No public institution can be trusted to investigate itself, so the announcement by the State Bar of California that it has begun a formal inquiry into Los Angeles County prosecutors’ use of jailhouse informants is welcome. The Bar suffers from a chronic manpower shortage and a huge case backlog, but it should recognize the extraordinary nature of this matter--dozens of criminal prosecutions may have been tainted by perjury--and expedite a thorough investigation.

The Bar’s task will be simplified if the district attorney’s office cooperates in the inquiry. The office has already begun a review of every case over the last decade in which one inmate testified that another had confessed to him in jail; those files presumably could be shared with the Bar investigators. The district attorney’s focus, naturally, is on whether convictions were wrongfully obtained and whether cases should be reopened. The Bar’s chief concern is different; regardless of whether innocent people were sent to jail, the Bar must discover whether the prosecutors who called the jailhouse informants as witnesses knowingly used unreliable testimony, violating the legal profession’s code of ethics and, perhaps, the law against suborning perjury.

The only drawback in the Bar’s participation is that its investigation will focus on the conduct of individual prosecutors, not of the entire district attorney’s office; the Bar does not discipline institutions. And yet the underlying problem at the district attorney’s office may be an institutional one: The evidence so far suggests that, despite repeated complaints from defense attorneys and a few judges, successive district attorneys allowed jailhouse informants to testify without any corroboration and when their truthfulness was very much in doubt. So casual and commonplace was the use of informants that no one even maintained a central file on where and when these pampered, privileged inmates appeared.

Were successive district attorneys and their top assistants simply sloppy and overworked? Or indifferent to whether concocted confessions were being offered in court? Or so eager for convictions in well-publicized cases that they knowingly hoodwinked the trial courts? Only further investigations will tell. The Bar’s inquiry should help pinpoint which prosecutors, if any, were responsible for introducing contrived and unreliable testimony into criminal trials. But it may still be necessary to investigate the district attorney’s office as an institution--an undertaking that will require the appointment of a special prosecutor.