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California has taken a step toward cracking down on the use of jailhouse informants and toward becoming only the second state to enact a statute designed to limit their testimony. A California commission recently issued advisory guidelines on the use of informants, including a recommendation that a state statute be enacted to require corroboration of jailhouse-informant testimony. The commission also recommended the disclosure of rewards that informants receive, the adoption by district attorney offices of written policies governing use of jailhouse informants, and the training of lawyers, judges and police investigators regarding the use of informants as witnesses. Many of the recommendations are based on those used by the Los Angeles County District Attorney’s Office since 1989, after a jailhouse informant demonstrated to reporters how he fabricated fellow prisoners’ confessions. Illinois adopted regulations governing jailhouse informants in capital cases in 2003 as part of a broader reform of its death penalty system. Another 17 states, including Alaska, Arkansas, Georgia, Nevada, Oklahoma and Oregon, require corroboration of their testimony, according to the American Bar Association’s Criminal Justice Section. John Van de Kamp, who chairs the 20-member California Commission on the Fair Administration of Justice, said he hopes the recommendations will encourage district attorneys to adopt the policies. The commission was established by a state Senate committee to review California’s criminal justice system. “Many smaller offices probably don’t have these policies and probably don’t think about them much, and I think this will focus them on the need to be very careful about the use of in-custody informants,” said Van de Kamp, a former California attorney general who works in the Los Angeles office of New York’s Dewey Ballantine. A ‘stringent standard’ John Spillane, the chief deputy district attorney for Los Angeles County, said that jailhouse informants have been used fewer than a dozen times in the last five years, a tiny fraction for an office that prosecutes 60,000 felonies yearly. “The standard that we placed is a very high and stringent standard,” said Spillane, who heads a committee that must approve their use. “We know that they don’t come to us with pure motives, and we know now also that these days jurors treat these individuals with skepticism.” Still, the state’s public defender, Michael Hersek, reported to the commission that of the 117 death penalty appeals cases pending in his office, 17 featured testimony by in-custody informants and six had testimony by informants in constructive custody. Outside Los Angeles County, jailhouse informants are still a concern, said Gigi Gordon, director of the Post Conviction Assistance Center, a nonprofit law firm in Los Angeles, who regularly holds workshops on the issue. “I know it’s a problem because I’m still asked to speak and teach lawyers how to investigate informants,” Gordon said. The issue of jailhouse snitches recently came up in Florida in the case of Angel Diaz, 55, who was executed on Dec. 13 for shooting a Miami bar manager in 1979. Amnesty International had asked that he be exonerated and pointed out that a jailhouse informant admitted giving false testimony against Diaz. His execution sparked another controversy: The first injection failed to kill him, and a second injection was administered. Florida Governor Jeb Bush promised an investigation and suspended executions. Diaz v. State, 2006 WL 3530471 (Fla.). A study published last year by the Northwestern University School of Law Center on Wrongful Convictions found that false testimony from jailhouse snitches accounted for nearly 46% of the 111 death row exonerations since the 1970s, making it the leading cause of wrongful convictions in capital cases. Bernie Murray, a past president of the Illinois Prosecutors Bar Association, said the state’s policy on jailhouse informants has been working well, but he added that most prosecutors do not believe there is a need for a pretrial hearing on their use. Murray said that Illinois was in a unique situation when it adopted the statute on jailhouse informants because of systemwide reforms. He said further that other states may follow suit.

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