Innocent Lives Matter: Government Use of Informant Testimony and Its Impact on Wrongful Convictions
One of the most important tools that the government often uses is informant testimony. An informant can come in many forms. For instance, there are police informants that typically “keep their ear to the streets” so that they can report any information helpful to police investigations. There are also in-custody informants in which the individual is currently serving a prison sentence and proclaims the defendant confessed to certain criminal activity. This type of informant is referred to as a “jailhouse snitch.” Then there are cooperators, individuals who have participated in the crime, but are willing to work with the government or testify on the government’s behalf.
However, nothing comes without a cost and every type of informant receives some form of a benefit for their contribution to the government’s case. In other words, informants that have information regarding criminal activity that would benefit police or prosecutors are given an incentive to participate. Some informants are given a monetary reward, a better plea offer to a lesser charge with a lighter sentence, or immunity. Others, such as jailhouse snitches, are able to have their current sentences reduced, obtain an early release from prison, or benefit from other charges being dropped.
Thus, these types of incentives give informants a motive to falsely inculpate innocent individuals. As of 2016, 15% of the 341 DNA exonerations involved false informant testimony. According to a report by the Center of Wrongful Convictions at Northwestern University School of Law, jailhouse informant testimony is the leading cause of wrongful convictions in capital cases. Consider the story of Mr. John Earl Nolley of Texas.
In May of this year, John Earl Nolley was released from prison after serving nineteen years for a murder he did not commit. Mr. Nolley’s conviction was based on the testimony of three informants who were facing criminal charges during the original murder investigation. One of the informants, a jailhouse informant, alleged Mr. Nolley confessed to the crime while they were in the jail law library. The other two informants, a couple, alleged Mr. Nolley made inculpatory statements about a pair of bloody shoes. However, the alleged confession didn’t match the crime scene nor did police ever recover a pair of bloody shoes. Mr. Nolley was still convicted and sentenced to life even though he was at work at the time the murder occurred. In July of 2015, Tarrant County District Attorney’s Office created the office first Conviction Integrity Unit (“CIU”) and collaborated with the Innocence Project to review Mr. Nolley’s case. The CIU discovered evidence that proved Mr. Nolley DNA did not match a bloody palm print found on the victim’s body. Additionally, the CIU discovered there was evidence about all of the informants that was never turned over to the defense during the original murder. For instance, the government never revealed to the defense that the jailhouse informant had testified in numerous other cases for the government, although the informant testified at trial that he had never “snitched” before. Additionally, the other two informants gave contradictory testimony at trial as compared to their grand jury testimony. Mr. Nolley’s case was the first conviction the CIU recommended should be overturned.
Mr. Nolley’s case is a representation of why there should be several safeguards in place when allowing informants to testify in the governments case-in-chief. Both of the informants in Mr. Nolley’s case were facing criminal charges in the same murder case. After testifying against Mr. Nolley none of the informants incurred criminal charges. Thus, there was motivation to fabricate their testimony to benefit themselves. At the expense of saving themselves it costed Mr. Nolley nineteen years of his life. When Mr. Nolley began serving his life sentence, his children were toddlers. Upon his release this past May, Mr. Nolley’s children were adult men with their own children.
Therefore, it is imperative for every state to implement certain standards that informant testimony must meet. For example, there is a bill pending in the Texas Legislature that would prohibit incentivized informant testimony in death penalty cases. The bill would only allow informant testimony if the defendant’s statements are recorded. Moreover, the Fair Trial Act is currently pending in North Carolina’s Legislature. The Act would require pretrial hearings that establish facts sufficient to overcome a rebuttal presumption of inadmissibility for the use of all informant testimony. Lastly, every State’s Attorney’s Office or District Attorney’s Office would benefit from the creation of a Conviction Integrity/ Review Unit. There are currently only 24 in the U.S. Thus, if every state implemented an Act similar to the one in Texas or North Carolina as well as implement a Conviction Review Unit in every office, it would help make strides in the criminal justice reform that is needed to reduce the number of innocent people convicted of crimes they did not commit.
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