Limited use of jail informants urged
The state Legislature should limit the use of testimony by jailhouse informants in criminal trials, according to the latest report issued by a blue ribbon commission examining problems of wrongful convictions in California.
The California Commission on the Fair Administration of Justice said lawmakers should enact a statute barring convictions based on the testimony of an in-custody informant, unless the account is corroborated by independent evidence.
Similar corroboration should also be required for jailhouse informant testimony presented in the penalty phase of a capital murder case, according to the 20-member commission, which is chaired by former California Atty. Gen. John Van de Kamp.
The recommended controls, if adopted, would parallel current state law mandating corroboration if testimony by a defendant’s accomplices is to be introduced.
Jailhouse informants have been implicated in a number of wrongful convictions, including 46% of those reviewed in a study by professors at Northwestern University Law School, the report noted. Critics say it is all too easy for informants to gather information about their fellow inmates’ charges and fabricate testimony to persuade prosecutors to offer them leniency on their cases.
Of the 117 death penalty appeals pending in the state public defender’s office, 17 featured testimony by in-custody informants and six included testimony by informants out on bail or otherwise in “constructive custody.”
Consequently, the commission said “confidence in the reliability of testimony of arrested or charged informant witnesses is a matter of continuing concern to ensure that the administration of justice in California is just, fair and accurate.”
In addition, the commission recommended that “whenever feasible, express agreements in writing should describe the range of recommended rewards or benefits that might be afforded in exchange for trustful testimony by an arrested or charged informant.”
At a hearing in late September, John Spillane, the chief deputy district attorney in Los Angeles County, and Gigi Gordon, director of the Post Conviction Assistance Center in Los Angeles, said that the Los Angeles County district attorney’s office had dramatically reduced its use of jailhouse informants in the wake of a massive scandal in the late 1980s.
After informant Leslie Vernon White told reporters how easy it was to concoct testimony and get a break in his cases, a special grand jury was convened in Los Angeles and took testimony from 120 witnesses, including six self-professed jailhouse informants.
The grand jury issued a report stating that the district attorney’s office had “failed to fulfill the ethical responsibilities required of a public prosecutor” in its use of jailhouse informants.
In the scandal’s aftermath, the district attorney’s office adopted policy guidelines “to strictly control the use of jailhouse informants as witnesses,” the commission report noted. The policy requires “strong corroborative evidence,” consisting of more than the informant’s apparent familiarity with details of the crime thought to be known only to law enforcement.
The office also maintains a central index of jailhouse informants who have offered to be or who have been used as witnesses, Spillane told the commission in September.
Spillane said that no jailhouse informant testimony had been approved in Los Angeles County in the last 20 months, and on only 12 occasions in the last four years.
However, the commission indicated in the report issued late Monday that the picture was far from clear in other parts of the state.
Only nine of 58 district attorney’s offices in the state responded to inquiries from the commission about their practices on jailhouse informants.
“I am shocked that years after the Los Angeles informant scandal demonstrated the problems with informant testimony, only nine district attorney offices in the state have written policies addressing the issue,” Natasha Minsker, an attorney for the American Civil Liberties Union of Northern California who testified at the September hearing, said Tuesday.
Four other large counties -- Orange, San Bernardino, Santa Clara and Ventura -- have adopted written policies similar to Los Angeles’, and all restrict use of jailhouse informants. But according to the report, only the Orange and Santa Clara county district attorneys offices have a policy that requires maintaining a central file of all data about informants.
Other commission recommendations for district attorney’s offices across the state include:
* Adopt a written policy requiring a supervisor’s approval for using in-custody informant testimony.
* Maintain a central file preserving all records on in-custody informants.
* Record all interviews with in-custody informants.
The commission’s recommendations were unanimously approved, said Santa Clara University law professor Gerald Uelmen, the commission’s executive director.
In addition to Van de Kamp, the members include California Atty. Gen. Bill Lockyer, Los Angeles County Sheriff Lee Baca, Los Angeles Police Chief William J. Bratton, three district attorneys, three public defenders, the attorney who heads the state’s habeas corpus resource center, two attorneys in private practice, two law professors, a former judge, a rabbi and a real estate developer.