Friday, October 19, 2007

What Would Jesus Do about uncorroborated snitch testimony?

It really is time right now to demand corroboration for testimony in court by criminals who receive leniency for their own crimes. I don't think it overstates the case to say the integrity of the entire justice system is at stake.

I can't stand to read too many more stories' like Clay Chabot's. He's the latest Texas convict for whom a new trial was ordered after DNA evidence concluded the primary witness against him in 1986 committed "aggravated perjury," according to Mike Ware of the Dallas County DA's office.

Bottom line, the real rapist accused another man who may not have even been there. The man he accused spent 21 years in prison, while the snitch walked, sentenced to time served on a misdemeanor theft charged. Reported the Houston Chronicle ("DNA evidence leads to new trial for inmate after 21 years," Oct. 19):

[Gerald] Pabst testified that he helped tie up Crosby [the victim], but that Chabot raped and killed her. Chabot told police he had not been involved in Crosby's death and was home with his family. But Pabst testified that Chabot was there seeking revenge for a drug deal gone bad.

Chabot was convicted of the rape and murder, and Pabst was released for time already served on a misdemeanor theft charge, according to the district attorney's office.

The argument for allowing compensated snitch testimony (paid for by either cash or reduced culpability for crimes they've committed), is that Texas law currently leaves assessing witnesses' credibility entirely to a jury. So somehow, the argument goes, it would take away jurors' "rights" to require corroboration.

I say thats a bunch of horsehockey. Prejudicial evidence may be excluded from the jury's consideration for any number of reasons. More importantly, the "let the liars testify" argument ignores solid research that shows deception and lying often succeeds. People are commonly fooled by liars. You CAN fool some of the people some of the time, not infrequently including prosecutors, judges and jurors.

At the Deception blog recently I was interested, if unsurprised, as a parent, to learn that, "according to a study by Leif A. Strömwall, Pär Anders Granhag and Sara Landström, by the ages of 11-14, children are able to deceive adults 54% of the time, when given the chance to prepare their lies (and even when they can’t prepare the figure is 43% …)." Indeed, even babies are able to deceive their parents!

How much more effective would an adult liar be, especially one hyper-motivated because their own life and freedom were at stake?

Given that some people clearly are effective, believable liars, well-practiced from an early age, how can a conviction be obtained "beyond a reasonable doubt" when we rely on jurors' assessment of the credibility of someone they don't know, particularly when that person is compensated and has a huge motivation to lie?

Clay Chabot's case shows how deal-cutting for testimony can corrupt the judicial process, suborn perjurious testimony and ultimately cause wrongful convictions. Adding insult to injury, after the trial Dallas prosecutors let the snitch who actually committed the rape free to return to the community, where one speculates he probably went on to commit more crimes.

Requiring corroboration for eyewitnesses, even those who aren't compensated, dates as a legal concept at least back to Mosaic Law which required that, "One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established." (Deuteronomy 19:15) Christ formally affirmed this doctrine as part of the New Testament covenant in Matthew 18: 15-16, as the Apostle Paul did in Second Corinthians.

I don't know the history about when, why, or by whom requirements for corroboration of witnesses were discarded from western legal and religious canons, but every time I see a case like Clay Chabot's, I think the rule needs to stage a comeback.

15 comments:

Anonymous said...

The judge should as a matter of course inform the jury that prosecutors routinely extort testimony from criminals, getting them to pitch their stories in return for reduced or quashed penalties, and should make that point that any uncorroborated testimony from a snitch should be assumed to be wholly false.

Of course that would require that judges were honest, so you see the problem here.

Emma said...

Scott,

I had to read your posting several times to make sure I had it right. No corroboration for informant testimony? No corroboration for informant testimony?? Hmm...

I am no expert on the US court system, but you're spot on about the research. Not only does most research show that people are bad at spotting liars (50% is the persistent accuracy figure in most studies), most of this research is done using college students as the 'liars'. So college students may be pretty good liars, but I would wager not as good nor as practiced as most persistent criminals. On the face of it I would expect that the ordinary juror's chances of spotting lies when the liar is practiced and (as you point out) highly motivated are probably below chance.

Having said that, I don't recall seeing a study where people made deception judgements about someone whom they had seen cross-examined by a competent and skillful lawyer. The impact of clever questioning has been neglected in the research and it's possible that good lawyers can elicit cues to deception during cross that will help the jury on its way. But the bottom line is that the best and most reliable cue to deception/truth is evidence. Facts that either corroborate or contradict. When someone's liberty is at stake, shouldn't we be after the best and most reliable cues?

You raise some interesting points here Scott - I'll muse on this a little more and maybe post about it when I get a chance.

Keep up the good work!

Emma
http://www.deception.crimepsychblog.com

Gritsforbreakfast said...

Ironically, Emma, after several scandals where dozens of people were wrongfully convicted, the Texas Legislature in 2001 required corroboration for informants ONLY in drug stings. (I actually negotiated that bill on behalf of ACLUTX, and at the time that's all that was politically possible.) After all these new innocence cases, though, it's clear that if it's needed for lower-level drug cases (and it is), it should be required for all informant testimony when it's compensated by money or reduced culpability.

I'll look forward to your comments; I'll bet there's actually a lot of virgin research to be done on the nexus between mendacity and grassing, as folks in the UK would call it. The "grass," or the snitch, as you may know, is one of my favorite blog topics. best,

Anonymous said...

Amen and Amen!

David said...

gritsy,

I was going to go along with your analysis until I read this:

http://hosted.ap.org/dynamic/stories/T/TX_DNA_MURDER_CASE_OHOL-?SITE=OHRAV&SECTION=HOME&TEMPLATE=DEFAULT

Had an outraged post completed and almost hit the publish button.

Are you sure this guy is innocent?

RoAN

Gritsforbreakfast said...

RoAN - Obviously I can't 100% say if someone is innocent, just like the jury verdict didn't mean he was guilty. But I'd mention an informed opinion on the topic from an Innocence Project press release today, which said:

Following is a statement from Innocence Project Staff Attorney Vanessa Potkin , who argued on behalf of Chabot this morning and will appear in court at next Friday’s hearing:

“If the District Attorney’s office intends to retry Clay Chabot, it’s going to be an extremely short trial because there is not one shred of evidence connecting him to this crime. Clay Chabot was convicted based on Jerry Pabst’s testimony, and the DNA results don’t just prove that Pabst lied to hide his own guilt – the DNA also shows that Chabot did not commit this crime.”

The informant lied, and was the main witness that cause Chabot's conviction. We'll soon find out if the DA has enough to prosecute without the rapist's testimony.

Glen Graham said...

I enjoy reading your blog and I am going to add it to my favorites list although I don't particulary like grits for breakfast. I prefer oatmeal sometimes. My dad still likes some grits with his eggs sometimes. In Tulsa we have a historic tree called the council of oaks tree where the Native Americans used to gather to contemplate different subjects and to determine their own form of justice. It was the location of one of the first forms of court systems. Rumors are that it was also a "hanging tree" but I think it is mostly rumors. Tulsa is also home to the race riot of 1920's and other problems.

The bible has interesting passages about self incrimination such as when Jesus was tried and asked him if he was the King of the Jews and other passages. I have posted some of this in my blog - oklahomacriminaldefense.blogspot.com --- some time back.

Keep up the good work. You got lots of readers even if we don't always post.

Glen Graham said...

http://oklahomacriminaldefense.blogspot.com/2007/06/biblical-authority-for-right-against.html

Long before Sir Walter Raleigh and ordinary English men and women were demanding production of an accuser, eventually linking this to the inchoate privilege against self-incrimination. Since they could not invoke the common law, the dissenters fell back on the Bible.

In the best known Biblical passage on confrontation, Paul stood accused of sedition so a Roman tribune sent him to the Roman governor and “commanded his accusers to speak before thee [the governor] the things they had against him.” At the hearing, Paul challenged his accusers who had only hearsay knowledge to prove the charges, pointing out that witnesses who had personal knowledge “ought to have been present before thee, and accuse me, if they had ought against me.” At this point, a marginal note underlines the dangers of hearsay: “For his accusers spake but upon a false report, which these bellowers of Satan had blowen abroad, and durst not them selves appear.” Acts 25:16

Two years later when Festus became governor he wrote his superior that Paul’s enemies were still demanding his punishment, adding “[t]o whom I answered, that it is not the maner of the Romaines for favor to deliver anie man to the death before that he which is accused, have the accusers before him, and have place to defend himself, concerning the crime.” (citing Acts 25:16).

Confrontation also figures in the noncanonical tale of Jesus and the anonymous woman allegedly caught in an act of adultery. When his enemies brought her before Jesus to force him to choose between his teachings and the Mosaic law, Jesus famously replied, “Let him that is among you without sinne, cast the first stone at her.” The Geneva Bible explains that in casting the first stones, witnesses “declared that they testified trueth.” So challenged, her accusers slunk off one by one, leaving Jesus alone with the woman. The Geneva Bible continues: “When Jesus had lift up him self againe, and sawe no man, but the woman, he said unto her, Woman, where are those thine accusers? Hathe no man condemned thee? She said, No man, Lord. And Jesus said, Nether do I condemne thee: go and sinne no more.” (citing John 8:9).

First, the right of confrontation is an American innovation, not an import from England. Second, the Founders wanted a right to confront not only the “witnesses” who appeared at trial but the “accusers” who lurked in the shadows. Finally, to “confront” an accuser meant more than cross-examination but a right to a trial of the accusation by procedures that were adversarial rather than inquisitorial. In short, the Sixth Amendment amounts to more than a bundle of disparate rights; it incorporates a holistic vision of a fair trial.

Glen Graham said...

Whether it was Sir Walter Raleigh (Protestant) incarcerated in the tower of London based on hearsay, or St. Thomas Moore (Catholic) incarcerated during another time in the tower of London based upon hearsay, Americans brought these experiences to America where they added specific protections in the Bill of Rights to protect us against incarceration by hearsay and incorporated a 6th amendment right of confrontation and a 5th amendment right against self incrimination. These are fundamental American Rights.

JT Barrie said...

Yes, much of our constitution is derived from common law. Common law is supposed to trump legislated law - or at least that is what my understanding of my first semester law course at the very liberal Coast Guard Academy. I also understood that many contracts and legislation was also invalid if they didn't adequately follow precedent. Yet when judges educated during my time invalidate these feel good laws it is reviled by authoritarians as "judges making new laws" or they are called "activist judges". How can one possibly call judges who rule based on historical legal precedents on recent legislation be called "activists". Only in Bizarro World can these accusations be taken seriously.

Ken Sparks said...

Texas has a statute requiring corroboration of accomplice witnesses. Code of Criminal Procedure Art. 38.14 reads as follows:

"A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not suficient if it merely shows the commission of the offense."

The jury is given this instruction in the jury charge.

Anonymous said...

If you start with the assumption that all witnesses should require corroboration, then what are you left with? All evidence offered in court comes from some witness, even the physical evidence. You can't trust the fingerprints or the DNA unless you believe the person that collected and processed them is telling the truth first. What you want to do is make a special rule that tells jurors that certain circumstances should give rise to a conclusive presumption that the testimony is false. Then why have juries at all? If we are going to have credibility determined solely by legislators and judges before the witness even testifies, then what is the point of the jury?

At some point we simply have to say we either trust jurors to make these decisions or we don't. If jurors either cannot or do not make the correct call in determining the truth, then we need to come up with a different system. You can't say you support the right to a jury and then at the same time say juries aren't capable of getting it right.

Anonymous said...

Responding to Emma's comment about "cross-examined by a competent and skillful lawyer".

(1) Most cases don't make it to court. It's rationally a better gamble to plead out to a prosecutor "deal" than serve massive prison time on trumped up charges (to accomplish trumped up jail time).

(2) Defense lawyers regularly cooperate with the prosecutors and are visited by FBI, etc to motivate them not to truly attempt to defend their client. Defense attorneys "play ball", since they get paid anyway, whether the client is convicted or not. And it's not just in the Dallas area that this goes on.

desotodreamer said...

What is happening in the courts. A "snitch"? Pabst wasn't a snitch..he was a rapist and murderer with Warder on his side..encouraging him and helping him get away with his crimes. Lord we can not be that ignorant as to not see what truly happened here. I am not to stupid to see that Pabst saw his way out was to blame the guy that Warder liked best..damn shame she was not doing her job with integrity and facts. A man served 21 years on the rapist murderers lies and now he finally gets what he deserves. PTL yet,the prosecutor wants to waste taxpayers money on the same guy who helped them solve the crime DUH! From the evidence, there was nothing linking Chabot to the crime..EXCEPT the rapist/murderer testimony! We see with DNA how that turned out. Get on to the cases happening here in Dallas county every day!

Mark F Barnes said...

I know Clay and he has always maintained he was innocent and always pointed the blame at Pabst. Henry Wade and his corrupt judicial system has done this so many times it would scare you to count them. Going all the way back to Randall Adams, Lenell Jeter, the list goes on and on. Now we have another innocent man Clay Chabot having to deal with the same miscarriage of justice. And they have convicted Pabst through DNA evidence, and sentenced him to life in Prison, yet this Asst. DA carries on her witch hunt to persecute Clay, so the nightmare continues for him. They have put him back in custody, on some trumped up violation of his Bond. I am having a very difficult time grappling with the concept of his sexual relationship having any concern about the conditions of his bond, as pointed out by the prosecutor, Ms. Moore. I do not believe that any court can take away that ‘fundamental right’ to marry. Without seeing the actual bond, my statements here are more hypothetical than anything else. Sure, there could be limitations on contact, but if a person who is of legal age comes to him and Chabot is not violating the house arrest by leaving the premises, who he has sex with is his own business, especially if they are now contractually obligated and bear the headings of husband and wife…. Furthermore, aren’t marriages generally consummated? Clay is not causing any harm, his first trial was overturned and he may be subjected to a second one, it surely sounds as though the case is one that has some problems. Unless the facts I have are incorrect, Gerald Pabst has been convicted of the murder. My primary concern with this is that people do not realize how many rights they are giving up on a daily basis by being apathetic to matters like this ….
Dallas County boasts the highest number of falsely convicted men exonerated with DNA evidence since post-conviction testing began…….. Imagine that!