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August 18, 2009

Posted by Alexandra Natapoff at 02:12 PM

Troy Davis Gets a Hearing--Recantation Redux

I posted the other day about how hard it is for defendants to get new trials when the witnesses against them have recanted. Yesterday, the Supreme Court took the unusual step of granting death row inmate Troy Davis a new hearing. Of the nine witnesses who testified that Davis shot and killed Officer Mark MacPhail in 1989, seven have recanted. Of the remaining two witnesses, one--Red Coles--is suspected of being the actual shooter. Here's the NYT story .

While the Davis case is not ostensibly about snitching, it revolves around some classic dynamics associated with informant use and its unreliability. One recanting witness--Kevin McQueen--was in fact a jailhouse snitch who testified that Davis confessed to him. McQueen had worked several times before as a police informant and knew the value of providing information against other inmates. When Queen recanted, he explained that he had fabricated the confession based on jailhouse gossip and television reports. Here's the excerpt from the original appeals brief:

Ex-inmate Kevin McQueen testified at Davis' trial that Troy had confessed to him. McQueen had been a "snitch" in other prosecutions and his version of Troy's "confession" differed wildly from established facts (e.g. Troy was eating breakfast at the Burger King in the morning). McQueen subsequently admitted, "[t]he truth is that Troy never confessed to me or talked to me about the shooting of the police officer. I made up the confession from information I had heard on TV. and from other inmate's talk about the crimes. Troy did not tell me any of this."

This tactic of fabricating other inmates' confessions based on jailhouse talk and publicly available information was made famous by Leslie Vernon White, a Los Angeles jailhouse snitch. In 1989, White went on 60 Minutes and showed reporters how with a few phone calls from the jail he could get enough information to fabricate a confession that police and prosecutors would accept as true. The ensuing Los Angeles Grand Jury Investigation (link to the left) was a response to the White revelations.

Another important aspect of the Davis case that commonly occurs in informant cases is the "first-in-the-door" phenomenon, in which the first suspect to cooperate with police not only gets to direct attention away from himself but can fundamentally shape the official investigation. Red Coles is the man who several witnesses now identify as the real shooter. The day after the shooting, Coles and his attorney went to police and fingered Davis as the shooter--Coles became a witness against Davis at trial. As a result of Coles's cooperation, police resources were directed at Davis. This happens all the time with informants, especially in complex fraud or drug cases--the first suspects to cooperate shape the entire investigation and make it more difficult to discover the truth. Former prosecutor Steven Cohen describes what happens when the government believes a witness who cooperates early:

it is a certainty that the information obtained from the cooperator will become part of the base of information utilized to evaluate future would-be cooperators. Moreover, the information will affect future questioning of witnesses and defendants; it will alter how investigators view the significance of witnesses and particular pieces of evidence; and it may taint the way the case is perceived by the prosecutors and agents. In other words, false information skews the ongoing investigation. The false information may prove critical to issues that have far greater import than whether to accept as true the proffer of another would-be cooperator. Rather, it might impact decisions regarding charges to be filed against other defendants, it might affect decisions related to an appropriate plea for a given defendant, and it might even influence whether the government decides to seek the death penalty. (Steven M. Cohen, "What is True? Perspectives of a Former Prosecutor," 23 Cardozo L. Rev. 817, 825 (2002)).

Comments

First time poster here.

First, I would like to say that this looks like it's going to be a really good site. This is great info that needs to be common knowledge.

So, the 'investigators' that fall for these false confessions... Are they totally incompetent? Are they actually incapable of assessing information scientifically? Or are they, instead, working on the goal of 'conviction' as opposed to the goal of justice?

I just find it incomprehensible that anyone with even a modicum of analysis skills would find these snitches to be trustworthy enough to use as witnesses.

I also find it incomprehensible that there are investigators in this day and age that still think that 'innocent people don't confess', but that for a different story.

Ooo! A 'preview' button! (Hey Radley! School up on this!) The comments box is a little small, though... Can I make it bigger?

Having been through a "snitch generated" Federal trial , I know full well of the truth of what you are trying to bring out. Thanks! It is a system few ,who have not been subjected to it , would begin to believe much less comprehend. I look foreward to reading your book and to this blogs continuance.

Bob, thanks for the comment. There is actually pretty interesting psychological literature on how all professionals--including police and prosecutors--can develop tunnel vision which impedes their objectivity in assessing facts. Once the government commits to relying on an informant, its pretty expensive to decide that he/she is lying.

Throsso, thanks for posting. I hope you'll consider sharing your experiences at trial with others through the "Testimonials" page. Alexandra

@Alexandra. I'm not sure if your dodge of Bob's question was intentional or you just overlooked what he was saying. I think the larger question is why would a police officer or prosecutor ever even use a snitch to begin with. As an outsider, I would be highly and deeply skeptical of a "rat" to begin with, let alone a rat with with an obvious and self-serving interest at stake.

Once they got invested, yeah, I see that. But I fail to comprehend why they would ever make that investment to begin with.

Thanks for focusing on the potential weakness of eyewitness testimony. This reminds me of the Colomb case in southern Louisiana that unravelled (post-conviction) after two snitches admitted that their testimony was concocted in precisely the fashion described by Leslie Vernon White. Good luck with your new blog.

Alan Bean
Friends of Justice

Unfortunately Justice Scalia thought:"Never mind" - ok, that's another topic.

Welcome in the blogosphere :-)

Tunnel vision:

There are processes that can be used to prevent that. Blinds, Peer review, etc. But what I see is no effort whatsoever to produce or motivate towards fairness or impartiality. Rather, the system actually seems to encourage tunnel vision in the pursuit of convictions.

The root problem, I expect, is that convictions boost careers. With virtually no negative consequences for malfeasance, and resources slanted heavily for the prosecution, investigators prone to tunnel vision would actually have an advantage career wise.

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Snitching by Alexandra Natapoff A Barnes & Noble Best Pick of 2009

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