Jail House Informants And The Constitutional Rights Of The Accused To Receive A FAIR Trial.

Case highlights risk of using jail informant
Man released, now denies offering to help prosecutors
Written by Jason Riley

In the weeks before John Jones’ trial on attempted-murder charges was to begin last month, prosecutors received a letter from an inmate claiming he had “bombshell” information.

The letter, apparently with the signature of inmate James Mallory, who served time with Jones, offered the Jefferson commonwealth’s attorney’s office evidence against several defendants in exchange for helping him get shock probation in a robbery case, according to court records.

“I’m willing to help you solve some serious cases and put a close to this killing!” the letter said.

But Mallory’s alleged offer to be an informant has turned into a headache for prosecutors — and, according to defense attorneys, illustrates the danger of relying on so-called “snitches,” whose personal interest in getting reduced sentences for themselves or other favors raise concerns about whether they are truthful.

Mallory, who was released in February, now says in media interviews that he didn’t write the letter to prosecutors and didn’t agree to testify or provide information about any defendants.

And Jones’ attorneys are requesting what could be a first in Jefferson County: having a judge remove an informant from a case because he is simply not believable.

“Jailhouse informants are a key way you put people who didn’t commit crimes in jail,” defense attorney Rob Eggert argued before Circuit Judge Frederic Cowan on Feb. 17, claiming that Mallory may have mental competency issues and is a convicted sex offender who would be a “pariah” and not someone in whom inmates would confide.

“The history of jailhouse information is one disaster after another,” Eggert said.

That is a common point of view among defense attorneys and legal experts.

“Jailhouse informants are infamously unreliable,” agreed Alexandra Natapoff, a Loyola Law School professor who runs a blog called snitching.org and who wrote a book on the subject, “Snitching: Criminal Informants and the Erosion of American Justice.”

“They are an extremely risky class of witness to get evidence from,” she said. “The incentives for lying are so great.”

Natapoff cites a study by Northwestern University that found that of the death-penalty cases in which the defendant was later found innocent, 45 percent of the original convictions were based on an informant who lied.
Limiting testimony

There is a movement among defense lawyers and some academics nationally to limit or end the practice of making deals in exchange for testimony.

Illinois, for example, holds a special “reliability hearing” so a judge can test the credibility of a witness’s testimony before it’s used at trial.

California recently passed a law that says that prosecutors can no longer win convictions in cases that rely solely on the uncorroborated testimony of jailhouse informants.

More than a dozen other states, but not Kentucky, have similar laws.

In Jefferson County, Assistant Commonwealth’s Attorney Tom Van De Rostyne and First Assistant Commonwealth’s Attorney Harry Rothgerber both defended the use of jailhouse informants, arguing that they are carefully vetted and often are taking a significant risk by coming forward.

Locally, jail informants have played a key role in several recent high-profile cases, including:

Francois Cunningham, who had been facing two murder charges, was allowed to plead guilty last year to lesser charges of manslaughter in exchange for providing information in several Louisville homicide cases.

Cunningham’s information also helped lead to the exoneration of Kerry Porter in the 1996 murder of Tyrone Camp, and police say other information provided by Cunningham could help solve four unrelated homicides, including the murder of a 6-year-old girl more than a decade ago.

Part of the evidence against Porter at his trial came from a jail inmate incarcerated with Porter who testified that Porter bragged repeatedly about killing Camp.

James Jenkins, who spent time in jail with Jeffery Mundt, one of two men charged with killing a man and burying the body in an Old Louisville basement, claims Mundt confessed his role to him. Jenkins also has given information in at least two other cases, and defense attorneys have called him a “professional snitch.”

Mallory, and possibly at least one more inmate, are also purported witnesses in the murder of Troya Sheckles, who was slain shortly after she agreed to testify against Lloyd Hammond, charged with killing Sheckles’ boyfriend and another man.

Mallory said Dejuan Hammond, Lloyd’s brother, admitted that he hired someone to kill Sheckles. And Mallory claims the co-defendant in Sheckles’ murder admitted his involvement to him. Hammond said Mallory is lying.

Stephen Sykes told police that James Davis Jr. was responsible for the murder of Jeffery Lay on April 5, 2010. Davis spent nine months in jail, but Sykes later told other inmates he was responsible for the shooting death.

The case against Davis was dismissed in May. Sykes has been indicted in the murder and pleaded not guilty.

Officials with the commonwealth’s attorney’s office say it has a system in which no deal is granted unless prosecutors and police believe the testimony. It must also be corroborated by what investigators already know about the crime or be supported by other evidence.

And they tell informants that if their testimony is untruthful, they could get harsher penalties on their own case and their statements could be used against them.

“No prosecutor wants to make an offer to someone who made up information or gathered it in the media,” Van De Rostyne said. “However, if they are risking their life and providing valuable information to law enforcement, they should be rewarded.”

Unusual developments

Mallory’s involvement in the Jones case has led to several twists.

Jones is accused of a shooting Dec. 31, 2010, in which a woman sitting in a car at the Jamestown Apartments in St. Matthews was hit in the face by a shotgun blast.

In what both sides said they thought was a first, at least in Jefferson County, attorneys for Jones asked Cowan to prohibit Mallory from testifying, or at least hold a hearing to determine if he was believable, arguing that he is an “extraordinary, unreliable, indeed incredible” witness, according to court records.

Van De Rostyne said he knew of no higher court rulings in Kentucky that would allow a judge to decide whether an informant is credible. He said that decision is up to a trial jury.

Cowan denied the request for a credibility hearing, but he said he would look at the issue more closely if the defense could provide examples.

Jones’ defense attorneys have promised to renew their motion and hope they will get such a hearing later this month.

Then, the prosecution and defense learned recently that Mallory went to see Jones in jail, just days before the trial was to begin last month, and the visit was recorded, though what was said has not been made public.

And most recently, Mallory told Cowan and members of the media that he never made any deal to testify against Jones or anyone else.

“I don’t know nothing about this case, and I sure wasn’t no potential witness to get a deal,” he said in an interview. “He never admitted nothing to me, so what could I possibly know?”

Freedom won

Mallory’s shock probation hearing, held in February, included a recommendation from prosecutors that Mallory be released because he had provided what police felt was credible information in cases and was willing to worth with prosecutors.

Judge McKay Chauvin told Mallory he wasn’t a great choice for probation, given his history, but he would be released because of his cooperation. Mallory did not mention what he knew or whom he had spoken with during the short hearing.

Van De Rostyne initially told defense attorneys and Cowan that he didn’t believe that Mallory was given special treatment for his testimony, except that prosecutors didn’t make a recommendation as to whether Chauvin should release him from prison.

But Van De Rostyne later acknowledged that he misspoke in court, saying that prosecutors did recommend that Chauvin release Mallory — even though the judge had denied the request earlier because Mallory had violated a previous probation.

Regardless of what Mallory is saying now, Cowan ruled he will have to testify in the Jones trial, which was postponed until next month because of a lack of available jurors.

Van De Rostyne said that it does not matter what Mallory is saying now, and that prosecutors believe that he has pertinent information in the case and that he will testify.

He also noted that defense attorneys and experts fail to point out the success stories involving the use of jail informants. Not only did an informant help free Porter, but it was an informant who helped exonerate Edwin Chandler for his wrongful conviction for manslaughter and robbery in the 1993 fatal shooting of a clerk at a Newburg Road gas station.

“There’s two sides to a coin,” Van De Rostyne said of jailhouse informants, noting they can often help prosecutors and police correct a mistake.

“They do help solve cases to the benefit of those who have been wrongfully convicted.”