Earlier this month, Orleans Parish District Judge Lynda Van Davis granted a new trial for Michael Anderson, who was convicted of murder and sentenced to death in a trial plagued with problematic evidence. Prosecutors have appealed the ruling and indicated that they will go forward with a retrial if necessary, so the question of Anderson's guilt or innocence is far from settled. What is clear today, however, is that his first trial was marked by prosecutors' troubling concealment of important information that undermined the credibility of key witnesses against him. Playing fast and loose with such evidence is unacceptable. In a death penalty case, it is unconscionable.
Judge Davis's ruling was based on prosecutors' failure to provide a videotaped interview with the sole eyewitness that highlights significant inconsistencies in her story and put her at the scene hours after the crime. Prosecutors explained this as an oversight that was due to their several post-Katrina office moves. More disconcerting, however, was the failure to disclose what Judge Davis called "the deal of the century" given to a jailhouse snitch witness, as that failure cannot be blamed on post-hurricane logistical challenges. In her opinion, Judge Davis noted that without the inconsistent eyewitness, "Anderson's conviction is based on the testimony of three jailhouse snitch witnesses, one of which received the deal of the century that was not revealed prior to trial."
Jailhouse "snitch" and informant witnesses often provide incriminating testimony during criminal proceedings in exchange for reduced sentences or other benefits. This practice provides powerful incentives for witnesses to lie, and makes their testimony notoriously unreliable. Despite this fact, police and prosecutors often use this highly unreliable form of evidence to secure convictions. The danger of this kind of testimony is not theoretical: in-custody informant testimony is a leading cause of documented wrongful convictions and a factor in over fifteen percent of the DNA exoneration cases nationally.
Because snitch testimony is so risky, it is imperative that such evidence be subjected to careful scrutiny and safeguards. Illinois has led the way by requiring pretrial reliability hearings in homicide cases, in which the state must demonstrate that a jailhouse snitch's proffered testimony is credible before it can be presented to the jury. Other important safeguards include mandatory, automatic pretrial disclosures of information related to jailhouse snitch testimony, including witness compensation arrangements and other information bearing on witness credibility. States should also require corroboration of statements made by jailhouse snitches. The Justice Project's common-sense reforms designed to protect the system from unreliable snitch testimony can be found in In-custody Informant Testimony: A Policy Review.
There is an emerging consensus among criminal justice experts on the need for reform. Alexandra Natapoff, a leading national expert on the issue, recently published a new book, Snitching: Criminal Informants and the Erosion of American Justice, which extensively details the threat that snitch testimony poses to the criminal justice system. Natapoff also outlines the need for new safeguards to prevent snitches from undermining justice.
By improving the standards for admissibility of jailhouse informant evidence at trial, states will increase the transparency and openness of the process and help ensure that the most reliable evidence is making it into the courtroom and before the jury and will increase public faith in the criminal justice system.
John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.