THE PROBLEM WITH JAILHOUSE SNITCHES

Jailhouse snitches are the most inherently unreliable witnesses, yet they are often testifying in the most high-stakes trials

By Meagan Flynn

Houston Press
November 28, 2016

Houston defense attorney Randy Schaffer says the only solid evidence Harris County prosecutors had against his client in his 2002 capital murder trial was that he admitted to being present when his drug dealer was killed.

But then a jailhouse witness named Karl Jones took the stand, and he told the jury that, yes, actually, David Holford had confessed to committing the murder while they were sitting in the privacy of a holdover cell. Holford was convicted.

Jailhouse snitches are always a red flag to Schaffer, who says in his 40-plus years of experience he has never once encountered jailhouse witness testimony used ethically in a capital case. There’s a certain irony about these jailhouse snitches: They are the most inherently unreliable witnesses, yet they are often testifying in the most high-stakes trials. Their testimony is generally only necessary when most other evidence against defendants is weak — yet those are also the cases in which a wrongful conviction is most likely.

And so when Schaffer encounters them in a capital case like Holford’s, he digs. To start, Schaffer found Jones had only agreed to testify against Holford if prosecutors could offer him something in return. In this case, prosecutors told him they could write a nice letter to the parole board if he cooperated — the hallmark of a jailhouse informant case, Schaffer says.

Next, Schaffer was able to dig up the prosecutors’ written summary of their first conversation with Jones—and it turns out Jones had told them a different story than the one he told in court. Schaffer says he originally told prosecutors Holford confessed while they were linked on a chain of prisoners, chaperoned by deputies as they walked through the underground tunnel leading from the courthouse to the jail. Schaffer now alleges that prosecutors coached Jones into changing his story so it would be more believable to a jury, then buried any documentation of the first conversation and kept it from Holford’s defense counsel. When Schaffer asked for the recording of the initial conversation with Jones, Schaffer said he was told the recording didn’t exist because Jones wouldn’t let prosecutors record it. “Since when is the DA's office allowing a prison inmate to tell them what to do?” he said.

Schaffer is set to go to court Monday to ask a judge to force prosecutors to turn over all of their notes on Jones. It is the second time this month Schaffer has gone after Harris County prosectors for allegedly eliciting false testimony from a jailhouse snitch, then rewarding them with favors in return — a problem Schaffer described as an “epidemic” in the state of Texas and one requiring sweeping reform in the Legislature this session. (Harris County District Attorney's Office spokesman Jeff McShan said prosecutors were not comfortable commenting until after January 1, which is when new DA Kim Ogg takes office.)

Just a couple weeks ago, a Fort Bend County judge found that a Harris County prosecutor had lied to the jury and defense team about backroom deals she had made with three jailhouse witnesses, and had knowingly elicited false testimony from them that contributed to a capital murder conviction. Schaffer had described the prosecutor’s actions as “shameful.” But added that this was just one example of a common tool used — and abused — by prosecutors.

“This is a speck of sand on the beach of criminal cases,” Schaffer told us after succeeding in the Fort Bend case. “The larger story is the systemic misuse of so-called jailhouse witnesses by prosecutors across the state to fill in holes in cases that they otherwise might not be able to win. It's a true disgrace. It's a culture of dishonesty that has fostered in prosecutors' offices across the state.”

* * *

There’s an old saying that Innocence Project of Texas Executive Director Mike Ware likes to apply to jailhouse snitches, and the chances that they are telling the truth. It goes: “Even a blind hog finds an acorn every once in a while," he said. "I guess every once in a while a snitch is telling the truth.”

Even if the defendant is most certainly guilty, Ware says theoretically it's likely that the inmate's story about that time his buddy confessed over mashed potatoes is a lie. What Ware is most concerned about, however, is the prospect of jailhouse informants contributing to wrongful convictions. And perhaps there is no case more chilling than that of Cameron Todd Willingham.

The jailhouse snitch who met Willingham in the Navarro County Jail was the first one to testify in his capital murder trial. He had told the jury that Willingham confessed to setting the fire in his home that killed his three young daughters, a crime for which Willlingham was convicted and put to death — and for which he is now believed to be innocent.

Over the last decade, the forensic fire science used to convict Willingham in the trial has been largely discredited as junk science, and the jailhouse snitch himself, Johnny Webb, has admitted that Willingham never confessed anything to him. Instead, Webb had just wanted a sweet deal on his own punishment in exchange for helping out the prosecutors. As chronicled by The Marshall Project, when the prosecutor asked whether Webb had been promised anything in exchange for his testimony, Webb said, “No, sir.”

“As a matter of fact, I told you there is nothing I can do for you,” the prosecutor responded.

That prosecutor, Jim Jackson, had in fact single-handedly reduced Webb's aggravated robbery from first-degree to second-degree without a deadly weapon, and later campaigned for his early release from prison after Webb served less than six years.

This now-infamous case went to trial almost 25 years ago, yet Ware says bribed jailhouse witnesses giving false testimony for personal gain is still a rampant problem in every criminal court in the state and possibly the country. The National Registry of Exonerations has identified 138 cases in which testimony from jailhouse informants has led to the conviction of an innocent person who was later exonerated.

“It’s a real problem,” Ware said, “and the kinds of cases it happens in are heavily weighted toward the most serious crimes.” Of the 138 confirmed wrongful convictions, the vast majority of cases are murder cases, and 27 defendants received death sentences.

Ware is currently working to vacate the conviction of a Bell County man named George Powell, whom Ware says was wrongfully convicted of an aggravated robbery in 2009 and sentenced to 28 years in prison largely thanks to a jailhouse informant. Ware says the snitch has now recanted his testimony, and the Texas Forensic Science Commission has discredited as junk science the surveillance video analysis the prosecution's expert witness used to describe the robber’s height. Like most jailhouse-witness cases, Ware said the other evidence was simply not strong enough against Powell.

“If it's a high-profile case with weak evidence, then they need that jailhouse informant,” Ware said. “The demand for an incentivized jailhouse informant goes way up, and the [the inmates] are not unaware of that. These are people who make deadly weapons out of toothbrushes, who make bootleg whisky out of potato skins. They understand how to fabricate a complete lie, and then create value by selling it to a willing buyer — which is the prosecutor.”

* * *

If it were up to Schaffer and Ware, the law would bar offering any benefits to jailhouse snitches in exchange for testimony. It would require all jailhouse witnesses to take a polygraph before ever taking the stand. And it would make it a crime for prosecutors to knowingly elicit false testimony and allow their penitentiary informants to lie to a jury.

But restricting prosecutors’ use of jailhouse witnesses would be an uphill climb in the Legislature, Schaffer said. And that’s because prosecutors maintain hefty influence at the Capitol, he said.

Besides, the reason prosecutors value jailhouse informants’ testimony is clear: What about cases in which prosecutors are near certain the defendant committed the crime, but are concerned that without a confession a jury will not be convinced — and then a murderer will walk free?

That scenario may always spring to legislators’ minds, Ware said — but it shouldn’t rule out commonsense reforms that would prevent careless prosecutors from soliciting false testimony from untrustworthy criminals. Ware, who is also an advisory member of the Tim Cole Exoneration Review Commission, said the commission will be petitioning the Legislature to require district attorneys to at least adopt a written policy like Tarrant County’s to safeguard against lying jailhouse snitches.

Tarrant County appears to be the only county in the state to have such a policy. Effective in June, it says prosecutors should first make the jailhouse witness submit to a polygraph test. Then, prosecutors will need to disclose to the defense anything that could “conceivably be interpreted as a benefit or consideration; a written summary or transcript of the informant's testimony; the informant's criminal history, mental health history and any gang affiliation; any benefits the informant received in the past for testifying; and everything about his current criminal case. The judge will get the dossier, too.

While Schaffer said it would be ideal if every county in the state adopted it, he said the only way to eradicate the problem of prosecutors rewarding prisoners for testifying for their own personal gain is to start criminally charging prosecutors who knowingly engage in the misconduct.

In Schaffer’s Fort Bend case earlier this month, Schaffer called for perjury charges to be filed against the prosecutor who lied about three deals she made with jailhouse snitches, then admitted to knowing some parts of one witness’s story were false. In reality, though, Schaffer said he doesn’t think anything will happen to her.

“They’re allowed to keep doing it, when case after case after case, it’s determined the witness testified falsely,” he said. “I’ve been slack at going after prosecutors. I’ve been willing to settle with my client getting a new trial. But I’m done doing that now.”