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Thursday, September 3, 2009

New Yorker Article--Of Experts and Snitches

In this extensive New Yorker article, reporter David Grann tells the story of how Texas prosecuted and executed Cameron Todd Willingham for the alleged arson murder of his three children. Willingham always insisted on his innocence, and recent forensic evidence indicates that the fire was in fact an accident. A Texas government commission is reviewing the case--as Grann puts it, if the commission concludes that Willingham did not set the fire, "Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the 'execution of a legally and factually innocent person.'"

There were two controversial kinds of evidence used at Willingham's trial. The first and most important was the state expert's opinion that the fire was intentionally set. The second was the testimony of Johnny Webb, a jailhouse snitch with drug and mental health problems, who was hoping to "get time cut" off his robbery and forgery charges and who testified that Willingham confessed to him. Eight years after the trial, in 2000, Webb recanted his testimony, but within months he recanted again. Here are a few excerpts from the story describing Webb.
Not long after Willingham's arrest, authorities received a message from a prison inmate named Johnny Webb, who was in the same jail as Willingham. Webb alleged that Willingham had confessed to him . . . During Willingham's trial, another inmate planned to testify that he had overheard Webb saying to another prisoner that he was hoping to "get time cut," but the testimony was ruled inadmissible, because it was hearsay. . . . Years later, in 2009, reporter David Grann interviewed Webb. After Grann pressed him, Webb]said, "It's very possible I misunderstood what he Willingham said." Since the trial, Webb has been given an additional diagnosis, bipolar disorder. "Being locked up in that little cell makes you kind of crazy," he said. "My memory is in bits and pieces. I was on a lot of medication at the time. Everyone knew that." He paused, then said, "The statute of limitations has run out on perjury, hasn't it?"
This is a good example of how jailhouse informant testimony can not only create bad cases but bolster weak ones. Because of the general understanding in the criminal system that informants get a break, informants may reach out to the government to offer testimony, making bad cases look better. In other words, the culture of snitching generates evidentiary "filler," even if the government is not actively looking for any.
The New Yorker story is centrally about the role of bad forensic expertise, and it highlights similarities between experts and informants. Both are paid and controlled by one side, both have a stake in the outcome, and both offer testimony that is difficult to cross examine or rebut. Professor George Harris wrote an article on these similiarities entitled "Testimony for Sale: The Law and Ethics of Snitches and Experts," in Pepperdine Law Review, in which he argues that experts and snitches alike should be subject to more rigorous controls and adversarial testing. In particular, he offers a proposal, on which I expand in my book, to create "defense informants," i.e. informants who could testify for defendants and receive the same kind of benefits that informants can now receive only by testifying for the prosecution.