Innocence Project clients, lawyers ask for transparency on jailhouse witnesses

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ANNAPOLIS — Recent exonerees and Innocence Project attorneys told a Senate committee Wednesday that more transparency and scrutiny of so-called jailhouse witnesses is needed to prevent wrongful convictions.

Senate Bill 769, as amended, would require a central list of in-custody witnesses who testify in criminal trials and any benefits they receive in agreements with prosecutors. The list would be maintained by the Governor’s Office of Crime Control and Prevention.

Sponsor Sen. William C. “Will” Smith Jr., D-Montgomery, told the Senate Judicial Proceedings Committee that out of 28 exonerees in Maryland, four people were convicted based on false jailhouse witness testimony.

Smith also brought up the significant cost of compensating wrongfully convicted individuals.

“If we can implement a process and procedure that provides a little more transparency that ensures this type of injustice doesn’t happen … we will end up saving a lot more money on the tail end,” he said.

Opponents, including prosecutors, argue that the measure would be costly and onerous to implement and that juries are responsible for determining witnesses’ credibility.

John Cox, deputy state’s attorney in Baltimore County, said prosecutors were concerned with the hearing requirement that makes in-custody witnesses “special” and allows judges to prevent juries from ever hearing their testimony.

“There is a confrontation process,” he said. “We have an obligation to provide all the information for impeachment regarding a witness who is testifying.”

Current law requires the state to disclose evidence that tends to discredit a witness, including evidence of a benefit or a cooperation agreement with prosecutors.

But Michele Nethercott, director of the University of Baltimore School of Law Innocence Project Clinic, said defense attorneys do not receive this information in all cases.

“It wouldn’t be a problem if our current regime was working,” she said.

Clarence Shipley, who was exonerated last year, testified that false jailhouse witness testimony had contributed to his conviction. During the investigation of a murder, police spoke with a man who had been charged with a series of car thefts who said Shipley had robbed him at gunpoint the night of the murder.

“In my case, the state’s witness, he was arrested for a crime,” Shipley said. “For his testimony, he got some of his charges dropped and a lesser sentence. That shouldn’t be.”

Shipley said he knows false jailhouse witness testimony happens and affects other defendants.

“It put me away for 27 years and I lost a lot because of false testimony of this jailhouse snitch,” Shipley said before the hearing.

James Owens, who was exonerated in 2008, spoke before the hearing about what he lost by being incarcerated for more than 20 years.

“I’m 53 years old,” he said. “I don’t have (any) kids. The State of Maryland took that away from me.”

Owens settled with Baltimore for $9 million last year, more than a decade after he was exonerated. He was unable to attend the bill hearing but said he supports the legislation.

Nethercott said the bill puts a system in place for judges to screen out the most unreliable witnesses.

“What makes these particular types of witnesses very dangerous is essentially they have a career,” she said. “They get arrested, they make deals.”

Michelle Feldman of the Innocence Project said Tuesday the statewide list and the bill’s requirements that judges hold pretrial hearings to determine witness credibility will cut down on “serial snitches” who may be unreliable.

“It’s not that jailhouse witnesses are always lying, but we just need more transparency to ensure that what they’re saying is truthful and that’s what this bill does,” she said. “It doesn’t prevent the testimony of jailhouse witnesses at all.”

Prosecutors were also opposed to disclosing the identities of confidential informants and information received from individuals they do not intend to call at trial. Smith said the bill’s amendments should address these concerns.

Feldman said improved information-sharing should help prosecutors identify potential witness issues.

“If you’re a prosecutor and your star witness has credibility concerns, you want to know about that,” she said. “We’re kind of putting layers in the system to ensure transparency.”