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SAN JOSE — As a Santa Clara prosecutor seeks the death penalty at trial next week against two reputed members of the ultra-violent Asian Boyz gang, he’ll work to make the most of testimony from a prison lifer. And so will the defense. The prosecution is relying on the testimony of Ty Pham, an inmate who, documents show, has bargained aggressively for favors in return for snitching on his fellow inmates. Pham is expected to tell the jury in Judge Alden Danner’s courtroom how two members of the gang — Van Hang Heang and Pov Touch — confessed to him that they gunned down a 64-year-old man whose son was testifying in a Los Angeles courtroom against seven fellow Asian Boyz. Pham, Heang and Touch shared a cellblock months after the 1998 shooting. The case is, perhaps, a classic example of the perils for prosecutors who are forced to use jailhouse snitches to get a conviction. And it comes as lawyers across the nation debate whether snitch testimony should be used as the linchpin in capital trials. Nobody likes a snitch. Not even prosecutors who sometimes must rely on their testimony at trial. With their long rap sheets, jailhouse informants are easy to impeach. Juries know their testimony rarely comes for free. But when prosecuting a murderous gang bound by a “blood in, blood out” oath, there’s often no other way. Especially when there is no witness, and no murder weapon. But defense lawyers contend — in motions to dismiss the indictments and in interviews — that Santa Clara Deputy District Attorney Lane Liroff is putting far too much weight on the testimony of a prison lifer who has told prosecutors that the “price” of his testimony is their help in erasing his third strike. “The only informant that puts a gun in my client’s hand is Ty Pham, and Ty Pham listed other possible shooters other than my client to the police,” said Deputy Public Defender John Vaughn, who represents alleged triggerman Heang. Court filings show that Liroff has evidence to corroborate some of Pham’s story, including tow truck and hotel records, testimony from other gang members and jailhouse notes. In an interview last month, Liroff argued that snitch testimony isn’t per se unreliable. “The test of the jailhouse informant is subject to heightened scrutiny by the jury. Other than that, there is no intrinsic fallibility with this type of evidence. The Supreme Court has repeatedly held it a valid way of proving criminal cases.” Even so, snitch testimony has come under increasing scrutiny, especially in death penalty cases. In Illinois, where the governor commuted 167 death sentences earlier this year, investigations revealed that three of 13 condemned men who were later exonerated were convicted on the basis of jailhouse informant testimony. But Liroff said his office goes to great lengths to ensure snitch testimony is credible. “When you are dealing with jailhouse informants, you have to take extraordinary steps to ensure the reality of the information you have,” said Liroff. He declined to discuss the case further after The Recorder refused his request to shield his informant’s identity. Pham’s name is included in public court filings. Fellow prosecutors say most DAs see snitches as tools of last resort and are very careful when they must rely on them to tie together a case. “I can’t imagine [Santa Clara DA] George Kennedy would use a jailhouse informant without having some great corroborating evidence,” said James Anderson, the Alameda County assistant DA who leads the special circumstances unit. “I know how he works. He is not going to do that.” When Vaughn and John Breidenthal, the deputy alternate public defender representing Touch, set out to impeach Pham, they may have lots of ammunition. In a letter to Liroff five months before Pham testified to the grand jury, Pham threatened to switch sides if Liroff didn’t give him what he wanted. “I could obtain counsel from the opposition in the event you do not try to right the wrongs that have occurred here,” Pham wrote. “Again and in conjunction to receiving help from the opposition, I will do what I have to in order to secure a reversal of the Three Strikes conviction.” PAYING THE PRICE The murder of Dong Dinh has its seeds in a turf war over a basketball court. Members of the Asian Boyz, infuriated that a Latino gangster urinated on disputed territory, commenced a series of shootings in 1995 that killed nine and injured more than a dozen of their rivals. Relying on the testimony of two former Asian Boyz, Truong Dinh and Paul Prado, Los Angeles prosecutors put seven members of the Van Nuys-based gang on trial. In the middle of the trial, in October 1998, Dinh’s father was shot five times in the doorway of his San Jose home. Truong Dinh returned to the stand, completed his testimony and all seven defendants were eventually sentenced to life in prison. San Jose police uncovered no eyewitnesses or murder weapons. But within hours of the murder, police had searched the prison cells of L.A. gang members and turned up Dong Dinh’s address. When Heang and Touch were picked up a year later on unrelated charges, the two found themselves in the same cellblock as Pham. It’s not clear whether he ended up with Heang and Touch by accident or by design. Los Angeles County Sheriff’s Deputy Michael Soop testified to the grand jury that the sheriff’s department brought Pham back to county jail under an assumed name to collect information for the sheriff’s gang unit. Pham testified that Soop sent him back for more details, but cautioned him against asking questions. Pham reported back with confessions — and word that Dinh had been shot five times in the chest with a .380 caliber pistol. In his grand jury testimony, Pham indicated that he feared not only for his own life but also for family members. He also acknowledged that he had a score to settle with the Asian Boyz — some of its members had raped his girlfriend — but told the grand jury he was testifying “to do the right thing.” Defense attorneys say Pham’s motives are anything but pure. Vaughn and Breidenthal have repeatedly sought to have the indictment dismissed because they say Pham’s character and testimony are unreliable. Liroff has acknowledged doing small favors for Pham, including promising to write a letter to the parole board. Vaughn contends Pham stands to gain much more. “We don’t know what the deal is because technically there is no deal,” Vaughn said. “The concern is not what Pham has gotten to date, but what he will get after he testifies. Liroff is too smart to make promises now, but if Pham plays his cards right, he will get something afterward.” Pham appeared to put a price on his cooperation in a taped conversation with Gregory Dohi, a Los Angeles deputy DA. “I can tell you that Lane Liroff and I have been going through that Penal Code looking for things, ways we can strike that strike,” Dohi told Pham in April 2000, according to a transcript Vaughn is expected to rely on at trial. “I can’t tell you sitting here right now that I’ve got a deal for you ’cause I don’t.” Pham responded: “You know, I could do anything, right — but if they couldn’t get no strike off I don’t wanna do nothing no more.” “I hear ya,” Dohi replied. “Look, that’s, that’s your price, and er, I won’t say that’s your price, but that’s what you want.” In an interview last week, Dohi said, “we never had a deal with that guy,” adding that he made no promises. However, he said, “We did talk about possibilities.” But, he added, “There was really nothing I in L.A. could do for this guy.” In a series of letters, Pham has sought Liroff’s help with his habeas corpus case and his intervention in government proceedings involving family members. When he testified, he maintained Liroff had made no promises on his strike conviction. But in a letter dated five months before his grand jury testimony, Pham told Liroff, “You have made promises yet have done nothing to help at all. . . . My legal advisor has informed me that you are using tricks to keep me from asking for anything from you. That trick being you say I should not ask for anything on the phone or in letters because the opposition will have to know about it.” Vaughn and Breidenthal will also attack Pham’s credibility by introducing a sheriff’s report that claims Pham tried to bribe a prison guard in September 2000 for an escape attempt and that he stole $400 from another inmate. More damning, according to Vaughn, is another series of sheriff’s reports that indicate Pham was suspected of providing bogus information to law enforcement about an attempted kidnap and ransom one month before his grand jury testimony. According to the reports, authorities believed Pham himself was behind the kidnap and ransom attempts. Judge Danner has ruled that defense attorneys can ask Pham about the ransom incident but can’t put other witnesses on the stand to discredit his answers. Vaughn, who said he has devoted a lot of investigative resources to the possible ransom plot, will likely ask Danner to reconsider. “It is collateral. It’s time-consuming, but it’s huge. I know beyond a doubt I can prove it,” Vaughn said. Defense attorneys also contend Pham hasn’t been able to keep his story straight, claiming he’s named a series of gang members as being involved in the plot to kill Dinh and his family members. But prosecutors point to other evidence to corroborate Heang and Touch’s guilt. Liroff alleges the two traveled to San Jose prior to the killing to scout out Dinh’s house. He has receipts, from a hotel and tow truck company, to document the outing. More importantly, two other gang members will testify. One is expected to say Heang admitted the crime to him during a conversation on a basketball court. The other is expected to say he went on the scouting trip with Heang and Touch. Vaughn insists the case against Heang is “thin.” He claims that the DA even agreed at one point to drop the murder charge in exchange for a guilty plea to conspiracy to commit murder, but his client declined. A plea would have given Heang his third strike; Touch is already serving a Three Strikes life sentence. (Karyn Sinunu, the Santa Clara assistant DA who supervises homicide, said she wouldn’t discuss whether there were any plea negotiations.) “Do you dismiss the murder charge if this is a death case?” Vaughn asks. “This is a case where no one will ever know for sure.” Still, he’s worried. “The problem is that even with the [lack of] evidence in this case, the jury could still convict. These are not angels with dirty faces,” Vaughn says of his client and his co-defendant. “They are little gangsters.” ‘THE ONES YOU HAVE TO GO AFTER’ Snitch testimony has long been attacked as unreliable. “You read so many horror stories, especially about the jailhouse snitch whose testimony puts the case over the top,” says Paul Gerowitz, executive director of California Attorneys for Criminal Justice. “You later find out the guy got a great deal” in exchange for the testimony. “It’s intimately connected with the wrongful conviction issue,” he says. “No one is ever convicted on a snitch alone,” he says, but “if DAs did not think that this snitch evidence was of critical importance, they would not be going out of their way to get it.” In Illinois, a Chicago Tribune investigation that examined 285 death penalty convictions in the state found 33 were based on the testimony of jailhouse informants. The Illinois Commission on Capital Punishment, appointed by then-Gov. George Ryan in the wake of investigations that exonerated 13 men on death row, has recommended regular training on snitch testimony for lawyers, police and judges. It also has recommended that jurors receive a specific instruction cautioning them on reliance of snitch testimony. But the commission stopped short of recommending that death sentences not be sought on the basis of snitch testimony. The Los Angeles DA’s office put restrictions on the use of snitches after a scandal 15 years ago involving repeat informant Leslie White, who admitted fabricating confessions from fellow inmates in exchange for favors. White said his falsified testimony helped put three men on death row; hundreds of cases were reopened and many convictions overturned. In his talks with Pham, Deputy DA Dohi told him: “We can’t use you as a witness in L.A. County.” “Ever since the Leslie White incident, the L.A. district attorney has been extremely careful about using jailhouse informants,” Dohi said last week. In Alameda County, Deputy DA Anderson says his office makes every effort to avoid jailhouse testimony. But when crimes are committed in jail or in gang cases where witnesses fear for their lives, snitches are sometimes the only option. Murders like Dinh’s “affect the very foundation of the criminal justice system,” said Anderson. “Those are the ones you have to go after.” Still, he says, he hasn’t used a snitch since 1987 because “they come with so much baggage.” “I really don’t like to use a jailhouse informant unless it’s absolutely important for a critical issue,” he says. “The cost of putting them on is generally so high for what you can get out of them.” Even so, Anderson says juries will believe even the dirtiest snitch, provided there’s enough corroborating evidence. “If they think the guy is telling the truth — no matter how much baggage he is carrying — you assume [the jury] is going to follow the law,” Anderson said. “You are just looking at his testimony; you are not looking at him. Even Charles Manson could tell the truth about something he saw.”

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