Prison snitches ‘like vultures’
With the Supreme Court set to consider the use of jailhouse informants in criminal trials, Jono Galuszka investigates why they are so popular and whether we should ever trust them.
Nark. There are few labels in the criminal underworld that stick for longer than that four-letter word. Those involved in the seedy underbelly of society are expected to sort things out among themselves. No cops. No statements. No co-operation.
Jail inmates are supposed to have their own cone of silence – what goes on in prison, stays in prison.
So when a member of the criminal fraternity breaks both those rules, it’s bound to draw attention.
The New Zealand snitch story features names such as Mark Lundy, Stephen Hudson, David Tamihere and Scott Watson.
Another chapter was added to the story when two jailhouse informants gave evidence in the trial of Joseph William Johnson and Chea Paratene Charles Brattle-hemara Haeana.
The pair were recently placed on trial for the March 2016 murder of Nomads gang member Palmiro Macdonald, but the jury was unable to return verdicts and was discharged.
The case against the two men was largely circumstantial: no
firearm, no independent witness to Macdonald’s death, no definitive DNA evidence tying either defendant to the crime.
The most damning evidence was supposed to be four men who would say the pair confessed to being involved in Macdonald’s death.
But two did not give evidence – one refused to speak while the other started before refusing to carry on. The other two did speak, but one was found to be giving false evidence.
While only the jury knows how important the narks were in the grand scheme of things, the fact they were even able to be called on creates cause for concern.
Informants ‘completely unreliable’ – judge
The National Registry of Exonerations in the United States estimates 17 per cent of death-row exonerations involve jailhouse informants, including the case of Ellen Reasonover.
She was wrongfully jailed for 16 years after two jailhouse informants, who were offered leniency in their cases in exchange for evidence, claimed she confessed to murdering a 19-year-old petrol station attendant during a robbery.
Both informants had long criminal records, and the jury in Reasonover’s case was not told about the benefits they got for testifying.
Martin Reeves and Ronald Kitchen were wrongfully convicted in
1991 for murdering two adults and three children in Chicago in
1988.
Jailhouse informant Willie Williams said Kitchen made a call from prison to Reeves, admitting to the crime.
But phone records showed the call never happened, and Kitchen only signed a confession implicating Reeves after being interrogated for 16 hours by an officer who was found to be complicit in the systematic torture of black suspects.
Former Canadian Supreme Court Justice Peter Cory conducted an inquiry into the use of jailhouse witnesses in the case against Thomas Sophonow.
Sophonow was twice convicted of the 1981 murder of a doughnut-shop employee, with corrupt jailhouse witnesses playing a key part in the trials, before he was acquitted.
Cory was scathing in his assessment of such informants, describing them as ‘‘a festering sore’’ and ‘‘completely unreliable’’.
‘‘Usually, their presence as witnesses signals the end of any hope of providing a fair trial. ‘‘They rush to testify like vultures to rotting flesh or sharks to blood.’’
Use snitches, but with care
Despite Cory’s assessment, University of Canterbury criminologist Greg Newbold says jailhouse informants can be relied upon in some cases.
He knows more than most about criminal and prison life, serving time before becoming an academic.
He says informants need to be assessed case by case. ‘‘I don’t think most of them have good intentions. Very few people are going to help police solve a crime because they think the crime needs to be solved. Usually, it’s to get someone out of it.’’ Everyone needs to be aware of the informant’s criminal history, associations, motivations and rewards before assessing their evidence, he says. A criminal with an extensive history of dishonesty offending, such as Lundy’s snitch, is one type of informant to be suspicious of. The issue of rewards for evidence is especially important. Newbold says informants will sometimes be offered rewards, while others will be aware of more implicit gains, such as impressing the Parole Board or easier access to bail. One of the snitches in the Macdonald trial got police to write a letter to a sentencing judge, saying he had given evidence in the case. Another in the same case had more than $20,000 spent putting him into witness protection, essentially giving him a new life. ‘‘A member of the public usually doesn’t have a motivation to lie, whereas criminals do,’’ Newbold says. But something that people might think would be a great reason to lie – having different gang associations – isn’t.
‘‘If you’re a gang member, you can’t nark,’’ he says. ‘‘Narking is narking. These people become pariahs.’’
Narking is a risky business
for inmates, going against both criminal and prison codes, putting a target on the informant’s back. ‘‘Being a nark is a label you can never, never shake,’’ Newbold says.
More rules on the way?
With all the issues about jailhouse informants, how do we ensure their evidence is solid enough to be used in court?
Illinois enacted a law in 2018 requiring judges to hold pre-trial hearings to assess informant evidence and decide if it should be put before juries.
The law came after it was found jailhouse informants helped convict 17 innocent people who collectively served more than 227 years in jail.
New Zealand has no specific law governing how jailhouse informants’ evidence should be considered, apart from a generic warning from judges about reliability.
That is despite informants being an ever-popular option for police in murder cases.
New Zealand’s most infamous nark is Roberto Conchie Harris, better known as Witness C.
He claimed David Tamihere confessed while the pair were in jail in the 1980s to the murders of Swedish tourists Urban Hoglin and Heidi Paakkonen.
But he signed an affidavit in 1995, saying everything he said was a lie and he only gave evidence after striking a deal with police for $10,000, which he said he never got, and early bail.
He also told the same story to Sir Paul Holmes during a 1996 interview, and penned a letter to Tamihere in 2007 saying he lied at trial. He was convicted of perjury in 2017 after a private prosecution launched by renowned bush lawyer Arthur Taylor.
Multiple other New Zealand murder trials have involved jailhouse witnesses, including those for Lundy, Hudson and David Roigard.
The informant in Lundy’s 2015 retrial claimed the convicted double-murderer was waiting for an appeal when they discussed the case, despite the fact the only time Lundy and the informant could have spent time together was during the first trial.
In Hudson’s case, police sent information on his case, the murder of Nicholas Pike in 2002, to 300 inmates asking if they had any information. Police offered a reward for evidence.
Roigard, convicted for murdering his son Aaron in June 2014, will have a Supreme Court hearing in October, arguing that two narks in his trial should never have been able to give evidence.
One claimed that Roigard admitted killing his son with a wood splitter and disposing of the body, which has never been found.
University of Auckland criminal law associate professor Scott Optican says the Supreme Court has made it clear in previous rulings that it does not want to create a rule presuming informants should be considered inadmissible unless proven reliable. ‘‘Previous cases have tended to let jailhouse testimony in and let the jury sort out how reliable it is.’’
But the fact the Supreme Court will be hearing cases similar to Roigard’s around the same time suggests there might be a broader discussion about how jailhouse informants should be handled, he says. That, in turn, could influence how lower courts handle informants’ testimony in the future.
Police say they corroborate evidence
The two informants in the Macdonald trial had their own distinct problems. The one who got police to write a letter for him said he never did that, despite a detective saying he did.
The second informant was found to be giving false evidence, saying he overheard Johnson make a confession in a prison shower block when it was impossible for them to be in the block at the same time.
Police were unable to provide anyone to be interviewed by
Stuff on jailhouse informants, instead providing a four-line statement attributed to Detective Superintendent Iain Chapman, the acting criminal investigations national manager.
He says a senior criminal investigation manager will have oversight of any case involving jailhouse informants, due to the high level of scrutiny of witnesses.
An informant’s motivation is always considered when assessing their reliability.
Police try to corroborate jailhouse evidence to see how it fits with other evidence in the investigation, he says.
But that is at odds with the evidence of so many informants.
One of the Macdonald trial snitches told the court Johnson confessed to shooting Macdonald in the head, cutting him up and stuffing him in a pillowcase.
The other informant also gave evidence about Johnson allegedly saying he shot Macdonald in the head. But he was not shot in the head, showed no sign of dismemberment and was not put in a pillowcase.
The informants in Tamihere’s trial also gave accounts that directly contradicted the forensic evidence.
In the case of the Macdonald trial informant who effectively perjured himself, checking if his evidence was reliable was as easy as looking at prison movement records. But it took Johnson’s lawyer displaying those records at trial to prove the evidence was false.
If a defence lawyer could do that, why not the Crown or police?
The lack of serious questioning of informants by police is not new, and shines brightest in the report prepared by the 1980 Royal Commission into the convictions of Arthur Allan Thomas for the 1970 Crewe murders.
Although no informants gave evidence in court against Thomas, who was ultimately exonerated of the murders after it was found police planted evidence, two came forward at the time of the commission claiming he made confessions.
One had a long history of frauds and was described as a ‘‘confidence trickster’’ in the inquiry report, with a psychologist saying he suffered from ‘‘paranoid schizophrenia and delusions of grandeur and intrigue’’.
The second had a prison file describing him as a devious and manipulative man who would go to considerable lengths to shorten his jail sentence.
Both ‘‘confessions’’ were rejected by the commission, which described their testimony as ‘‘a tissue of lies’’.
‘‘It causes us grave concern that very senior police officers were so obviously ready to place credence on such unreliable, selfinterested, and, in the case of the first inmate, deluded evidence,’’ the commission said in its report.
‘‘It was but another instance of the police being unwilling to accept the pardon.’’
But what may be more bizarre than police not properly checking out informants is people confessing in the first place.
Crown prosecutor Ben Vanderkolk made mention of it when closing his case in the Macdonald trial. ‘‘To put it colloquially, why would Mr Johnson be so dumb as to make admissions?’’
Newbold agrees.
‘‘You have to be dumb or naive to talk about it,’’ he says. ‘‘Lawyers will always tell you: ‘Don’t talk to anybody about this.’ You have to wonder why they do it.’’