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Advocates, exonerees ask for safeguards on use of jailhouse witnesses

ANNAPOLIS — Advocates battling wrongful convictions asked legislators Tuesday to increase transparency around the use of so-called jailhouse witnesses by requiring the disclosure of information to the defendant and a statewide database that tracks when witnesses testify as part of a deal with the state.

House Bill 637 and Senate Bill 534 would require prosecutors to report testimony from in-custody witnesses and any benefit such witnesses receive, such as a favorable release recommendation or an agreement to modify their sentence, to the Governor’s Office of Crime Control and Prevention, which would maintain a database. The information must also be disclosed to defense counsel.

Though 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, advocates say defense attorneys do not always receive the information. Prosecutors are also in the dark about any deals an informant has made in other jurisdictions.

“I submit to my colleagues that we can do better,” Del. Debra Davis, D-Charles, told the House Judiciary Committee at a hearing Tuesday.

Davis, the sponsor of House Bill 637, said wrongful convictions erode public confidence in the justice system, cost taxpayers millions of dollars in compensation awards and give victims of crime false confidence that the perpetrator of a crime has been caught.

Several recent exonerations by the Conviction Integrity Unit in the Baltimore City State’s Attorney’s Office have involved false testimony from in-custody witnesses, according to CIU chief Lauren R. Lipscomb. Prosecutors often have no way of knowing if a jailhouse witness has a history of testifying in exchange for favorable treatment, especially if it has happened in another jurisdiction.

“In my opinion, a central repository would protect the state from unwittingly using professional witnesses, witnesses that we don’t know to be benefited,” Lipscomb said. “A better assessment of informant credibility will allow us to ask better questions of the police if we see patterns.”

The Maryland State’s Attorneys’ Association opposed the bill, arguing that many of its requirements are already in the law or in state rules. But Steve Kroll, coordinator for the MSAA, said prosecutors are interested in the idea of a statewide system to track in-custody witness testimony.

“I don’t know in another jurisdiction what somebody else does, but I should know,” Kroll said.

Del. Luke Clippinger, D-Baltimore city and chair of the committee, pointed out that a database of jailhouse witnesses and their deals would be in the custody of the state and relevant information would have to be turned over to the defense in every case where such a witness testified.

Kroll said the information would be helpful to the state in assessing its witnesses.

‘Nothing to lose by lying’

Alfred Chestnut, a recent exoneree, called wrongful conviction “a nightmare” and said he did not see inmates confessing to others, in part because of a wariness of informants.

“I can tell you that people aren’t talking about their crimes to other inmates or in prison,” he said. “That just doesn’t happen. Everyone knows that what you say about your case can be used against you.”

Chestnut said in-custody witnesses “have everything to gain and nothing to lose by lying.”

Demetrius Smith, another recent exoneree, said a witness against him was a repeat informant who wrote to the judge asking for a deal in exchange for his testimony — information that was never provided to Smith’s defense attorney.

“Jailhouse informants are incentivized to lie to get better sentences,” he said.

Michelle Feldman, state campaigns director for the national Innocence Project, said the best solution is to stop using in-custody witnesses.

“Jailhouse informants have a strong motivation to lie because they expect leniency,” she said.

Feldman said that the rules require information be turned over about any benefits a jailhouse witness receives in exchange for testimony, but that it is often turned over late, incompletely or not at all.

Similar legislation was introduced in 2019 and also faced pushback from prosecutors, who were concerned about the cost and logistics of implementation. The Senate version was referred for interim study.

Senate Bill 534, sponsored by Sen. William C. “Will” Smith Jr., D-Montgomery, is scheduled for a hearing in the Senate Judicial Proceedings Committee on Wednesday.

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