If you are a prosecutor, here is a sure-fire way to convict an innocent person: 1) Arrest the person, even though you have no evidence, 2) Put that person in jail and make sure certain inmates have contact with him/her, 3) Ensure these other inmates know that you reward behavior that helps you win cases, (better yet, seek out a few who have been helpful in convicting others in the past) and 4) After selecting your informant, go over with her/him exactly what testimony to share in court. Presto! You have a conviction! Even if you reveal to the jury that the informant is getting something in return for his/her testimony, which is a legal requirement, minimize this; make it seem like it is standard procedure and reliable. Juries will buy it. And if later the testimony is found to be false, you thought it was true. Nothing’s going to happen to you. You have immunity.
In the last four years in Michigan, eight men have been exonerated because it was shown that the jailhouse informants lied about what the accused men had told them while awaiting trial. According to Elisha Anderson, a reporter for the Detroit Free Press, in Ramon Ward’s case, Joe Twilley and Oliver Cowan lied about Ward confessing to them that he had murdered someone. They also lied about how many times they had previously testified against other defendants and lied about the benefits they received for their testimony. In Temujin Kensu’s case, we have a video of the man who testified against him explaining how the prosecution coached him to lie, and we have documented evidence of how it benefited the man. For a 50-second viewing of this video, go to 1:50 in Review for Clemency.
Let's step back and make a rational assessment of jailhouse informants.
Jailhouse informant testimony is inherently biased. People in jail do not tell you what you want to hear unless you give them something in return.
Prosecutors work with their “witnesses” so there are no surprises in court. Anytime a jailhouse informant is used, a deal has been struck. In our opinion, 99% of the time, this makes the prosecutor an accomplice to the crime of perjury (when informants lie in their testimony). But since prosecutors have immunity, they aren’t too worried about it.
Rep. Steven Johnson, R-Wayland, has introduced a bill that won't do away with informant testimony but will make it more accountable. It accomplishes several things:
It will require a separate “hearing to assess the reliability of the informant and to determine if the prosecuting attorney can introduce evidence to corroborate the content….”
It will require that each prosecutor’s office track information associated with using jailhouse informants, including benefits they receive for doing so, and how many other times the informant has been used in this capacity, and to submit this information to the State Attorney General.
It will require the victims of the jailhouse informant’s own crime to be notified about the benefits given in exchange for his/her testimony.
The prosecution must show "by a preponderance of the evidence that the in-custody informant's testimony is reliable" or the testimony will be inadmissible.
Although we question if any jailhouse informant testimony is reliable, we commend Rep. Steven Johnson for introducing legislation that will regulate and inspect the process. It is badly needed. It guarantees that the court will pause and have a separate hearing, putting the burden of proof of the reliability on the prosecutor.
This a huge step in the right direction but as we consider this, we have some concerns:
The information collected is “confidential and is not subject to disclosure under the Freedom of Information Act” (FOIA). Now, that’s a real head-scratcher. What is the point of having a system if the state controls access to it? Trial testimony is public record. Why is pulling this data together off-limits to FOIA requests?
Will the Attorney General check for informants who testify in multiple counties?
Notifying the victims of the informant’s crimes seems to be the right thing to do. It adds more transparency to the system. But what is the purpose beyond that? The bill does not state when the informant's victims will be notified. Before the trial? After the testimony has been given and becomes public record? Can the informant’s victims challenge this? This appears to be left hanging.
We commend Mr. Johnson and this bill. Yes, we maintain that this is regulating something so inherently biased that it is a proposal only to lessen its destructiveness, and manage something that should never be allowed in the first place. But perhaps this is a more realistic approach in light of the fact that prosecutors would be up in arms at the prospect of eliminating one of their favorite tools and such legislation would never pass. If the courts sincerely implement this, it should eliminate 90% of jailhouse testimony. Despite our belief jailhouse informants should be eliminated entirely, we encourage you to contact your representative and support House Bill 6356. To find out who your state representative is, go to Find Your Representative.
You may download House Bill 6356 here.