The dubious justice of jailhouse confessions

by Mike White / 27 April, 2018

Prison informants should be considered the most untrustworthy of all witnesses, but New Zealand police and prosecutors still resort to them when things are desperate. In this story from 2011, Mike White examined the murky world of snitches and cellmate confessions.

Scott Watson’s trial for the murder of Marlborough friends Olivia Hope and Ben Smart was the culmination of one of New Zealand’s most extensive and costly police investigations. But apart from two of Olivia’s hairs eventually found on his boat, compelling evidence against Watson was scant and circumstantial.

So when two “secret witnesses” gave evidence of Watson’s supposed jailhouse confessions, they stood out among the parade of hundreds of witnesses throughout the three-month trial. These witnesses – so protected they were known only as A and B – were criminals who’d been in prison with Watson after his arrest. Both claimed Watson had told them he’d murdered Ben and Olivia.

When they gave evidence, the court was cleared, with only lawyers, the jury and the Hope, Smart and Watson families allowed to remain. Such was the secrecy even the windows were blacked out to prevent the public seeing them.

As Watson’s father, Chris, recalls, “There was so much tension – you could’ve cut it with a knife all the time they were on.”

Olivia’s father, Gerald Hope, is still uncomfortable remembering what happened when the secret witnesses gave evidence.

“The effect on us was absolutely devastating. It was the worst aspect of the trial, the description of how Olivia was supposedly murdered. It was like coming home and finding someone had been murdered in your own house.”

At the time, Hope believed the evidence; he believed the secret witnesses had come clean because they felt sympathy for the victims and their families. “We were so focused on convicting Scott Watson, I think objectivity was something we never considered. It was something that came to me much later as I reflected on the whole court case. At the time, we just wanted Watson put away. We wanted retribution.”

Hope has no doubt the evidence had an impact on the jury, as it did on him. “It had to have. It was absolutely riveting. You stopped breathing. It was just awful.

“But the whole thing was a stage set. It was rehearsed and, from a prosecution point of view, it was a pivotal part of the trial. I know that the police, in a very methodical way, groomed these witnesses – no doubt about it – to go through the story and stick to the script.”

Olivia’s parents Gerald and Jan Hope arrive at the Wellington High Court for the first day of the trial of Scott Watson. Gerald Hope: “Honestly, today, I think [the prison informants] should not have been used. I think it was unfair and it was cruel.”
In 1812, in Vermont, in the United States, Russell Colvin went missing and Jesse Boorn was subsequently arrested for his murder.

The authorities had little evidence, so they put convicted forger Silas Merrill in his cell, who later testified Boorn had confessed to murdering Colvin.

As reward, Merrill was released, while Boorn and his brother Stephen were sentenced to death. They escaped the noose just in time when the supposedly murdered Colvin turned up alive in New Jersey.

Such “jailhouse confessions” have been a maligned part of justice systems for centuries. They rely on the assumption that accused people who have continually professed their innocence will, in a moment of weakness, remorse or bravado, admit their crime to a virtual stranger in prison with them.

The fact the stranger is in jail because of their own dishonesty or because they’ve breached rules of accepted behaviour, and that they invariably come forward only after some inducement is promised, seems to matter little to authorities.

Overseas, jailhouse witnesses are among the most controversial areas of law. A study by the Centre on Wrongful Convictions at America’s Northwestern University’s law school showed prison informants were the leading cause of wrongful conviction in US capital (death penalty) cases. Of 111 people on death row who were eventually proven innocent between 1973 and 2004, jailhouse testimonies played a part in 46 per cent of cases.

California’s Commission on the Fair Administration of Justice estimated 20 per cent of all wrongful convictions were the result of false testimony from prison witnesses.

Perhaps the most scathing judgment on jailhouse witnesses came after an investigation into the wrongful conviction of Thomas Sophonow in Canada. Sophonow was twice convicted of murder, with three corrupt jailhouse witnesses playing a crucial part in his trials. He was eventually acquitted after four years in prison.

As former Supreme Court Justice Peter Cory concluded after his inquiry: “Jailhouse informants comprise the most deceitful and deceptive group of witnesses known to frequent the courts. The more notorious the case, the greater the number of prospective informants. They rush to testify like vultures to rotting flesh or sharks to blood.

“Jailhouse informants are a festering sore. They constitute a malignant infection that renders a fair trial impossible. How many wrongful convictions must there be before the use of these informants is forbidden, or at least, confined to very rare cases?”

It’s not just a North American affliction: jailhouse witnesses have been a contentious part of many New Zealand trials.

High-profile NZ cases with secret jailhouse witnesses

When David Tamihere was tried for murdering Swedish tourists Urban Hoglin and Heidi Paakkonen in the Coromandel, several cellmates claimed Tamihere had admitted his guilt.

The jury heard that Tamihere told cellmates he’d cut up the bodies and dumped them at sea. When Hoglin’s body was found, intact and buried on land a year later, the evidence was shown to be palpably false. One witness later recanted his testimony, swearing an affidavit he’d fabricated his evidence in return for significant rewards. He later retracted his affidavit.

In Scott Watson’s case, secret witness A also recanted his testimony, in 2000, saying he’d lied. He then changed his mind. And then changed it back again.

Secret Witness B didn’t even share a cell with Watson – supposedly Watson whispered his confession through a cell door peephole. This was despite Watson having been warned about jailhouse snitches and not admitting anything, even to his girlfriend who was secretly working for the police.

The witness had been provided with a car and cellphone by police and received what many consider an extraordinarily light sentence on other charges he faced. He’s now back in jail on serious drugs offences.

More recently, the case of Stephen Hudson, convicted of killing Nicholas Pike, demonstrated the police use of jailhouse witnesses when trying to solve difficult cases.

Pike disappeared in 2002. In 2007, police offered a $50,000 reward for information, and two prison mates of leading suspect Hudson (in jail on other charges) came forward saying he’d confessed to the murder.
When police sent information on the case to 300 other prisoners who’d been in jail with Hudson, five more came forward claiming he’d admitted the murder to them as well.

The fact that none of them had been motivated to contact police about Hudson’s supposed admissions prior to the offer of a reward and police approaches is noteworthy. So is the fact that one of those who claimed Hudson confessed to him was proven at trial to be lying because he never had the opportunity to meet Hudson while in jail.

As is normal with jailhouse witnesses, all received name suppression. However, it’s well known that among them were some of New Zealand’s most notorious criminals.

As the Supreme Court put it, “All had appalling records and had motives (either in terms of the reward or a possible desire to curry official favour) to implicate [Hudson].”

Their testimony varied significantly – they told of different murder weapons, locations and ways the body was disposed of. But the Crown suggested telling different people different stories might have been an extremely cunning way for Hudson to throw police off the track. Presumably, the fail-safe and logical move of not telling anybody anything didn’t occur to Hudson.

Lawyer: 'These people are polished liars'

For Hudson’s lawyer, Greg King, the biggest surprise wasn’t that police would go on a “recruitment drive” among prisoners to bolster their case, but that they found only seven criminals who would take the bait.

In his experience, police tend to use jailhouse witnesses when they have little other evidence. Just as with the Tamihere and Watson cases, police investigating Nicholas Pike’s disappearance had no body, no murder scene, no murder weapon.

“So in that situation, an admission is valuable – some would say necessary. And the people they target are desperate, unscrupulous, dishonest, untrustworthy and self-serving and can see an opportunity to strike.
“I can’t think of a stronger illustrative metaphor, but saying they’d sell their grandmothers if it suited them is a gross understatement – they’d do anything to improve their miserable lot in life.”

King says juries are ill-equipped to deal with the impact of jailhouse snitches. People with prison experience are prevented from serving on juries so jurors generally haven’t had exposure to criminals and are not familiar with their calculated deviousness. And the high level of pageantry in court for such witnesses – extra security, side entrances being used, name suppression – creates the impression that the witness is special and his evidence considered extremely important.

“And they all say the same thing – ‘I was so shocked and I felt so sorry for the family and I know I’ve done horrible things in my life but that was terrible what he did and that poor family without a body.’ And jury members have this romantic notion of honour among thieves and how they’re putting their lives at risk by coming forward and going against the criminal code. But it’s an attribution of morality to these witnesses which anyone who’s ever dealt with them knows damn well is just not the truth.

“These people are such polished liars they really would earn Academy Awards for their performances. They’re the best of the best when it comes to lying. It’s their life’s work.”

While nobody can ever tell what weight juries put on supposed cellmate confessions, King senses they are disproportionately persuasive. Indeed, overseas studies have shown jurors view confessions made to a cellmate in much the same way as those made to police.

Moreover, in cases where police produce more than one jailhouse informant, juries are swayed by the cumulative effect, no matter how little truth is told.

King doesn’t believe such witnesses should be automatically barred from giving evidence, but feels they should be excluded unless there are compelling reasons for their testimony to be admitted – such as having provided a lead to where a murder weapon is hidden that turns out to be true.

And while current legislation simply requires judges to consider warning juries about the credibility of jailhouse witnesses, King believes cautions should be much stronger, because such testimony is, “potentially the most dangerous form of evidence there is. Never is the odious stench of perjury more likely to permeate the courtroom than when a fellow prisoner appears in a trial against a former cellmate to give evidence of an alleged admission. If you sup with the devil, you should do so with a very long spoon.”

A guard escorts a detainee at the Adelanto Detention Facility, California, where a law has been passed requiring jailhouse informant testimony to be corroborated by other evidence before it’s considered by juries.

Scott Optican, Auckland University associate professor of law, says at present there’s little to control such witness evidence beyond judges’ warnings. “The question is, how seriously do juries take the [judge’s] warnings?”

And he notes judges differ in how they perceive jailhouse testimony. A recent Supreme Court decision saw four judges rule a prison informant’s statement was admissible while Chief Justice Sian Elias argued it shouldn’t have been heard, emphasising that, “cell confessions are notoriously unreliable”.

Optican suggests a specific statute could be added to the Evidence Act that gives greater guidance to judges on whether to admit cellmate testimony and outlines how to direct juries to consider it.

Such is the concern overseas with prison informants, many jurisdictions have already moved to limit their use. In several Canadian provinces and Los Angeles, a panel vets jailhouse witnesses to decide if their evidence is credible. In Illinois, a judge conducts a pretrial interview to study their testimony. And in August, California passed a law requiring jailhouse informant testimony to be corroborated by other evidence before it’s considered by juries.

New Zealand police won’t comment on what incentives are given to prisoners to testify against cellmates. But as well as cash rewards, things such as supportive letters to parole boards or judges, indicating the prisoner is co-operating with police, have been used.

Critics of jailhouse witnesses point out that if the defence or accused offered incentives for people to give evidence supporting their version of events, there would be an outcry, yet it’s seemingly okay if the police and prosecution do it.

Canterbury University sociology professor Greg Newbold says narking on other inmates breaks the most sacred prison tenet. “A lot of criminals may do bad things, but they have a very strong code of honour and scruples. But informants are the scum, the dregs of the criminal community who have no notion of morality or decency in even their own world.”

Newbold, who spent five years in prison for drug dealing, says suggestions by police that narks must be honest because what they are doing risks retribution in prison is “bollocks, complete bullshit”.

Such witnesses get released early, shifted to a minimum security prison or are put in protection, he says. The reason they snitch is because there’s almost always some benefit offered to them, though this isn’t necessarily disclosed at trial.

He says when Arthur Allan Thomas was pardoned in 1979, police were so desperate to come up with evidence he was guilty that they found two Paremoremo inmates who swore Thomas had confessed to them. In fact, Newbold himself had watched Thomas steadfastly profess his innocence throughout his time in prison.

“A lot of cops are scrupulously honest, but there are a lot who won’t hesitate to lie if they think it’ll advance their cause. A lot of cops are just as bad as the witnesses, so they don’t care about using an unreliable witness. Their thing is to win at any cost because, ‘we know the guy’s guilty’ – the ends justify the means. It’s very dangerous, very cynical.”

Police don’t keep records of how often they use jailhouse witnesses, nor is there any register to warn of repeat snitches. And nor is there any specific police policy or procedure for handling jailhouse witnesses or their evidence.

Police: Checks and balances test witness credibility

But manager of the police covert operations group Detective Inspector Paul Berry insists they always carefully scrutinise jailhouse witness evidence. “And that’s for the glaringly obvious reason they are invariably criminals doing prison sentences and their motivations are different from the normal person who doesn’t do crime.”

Despite obvious examples of jailhouse witness unreliability or lying, he remains confident sufficient checks and balances exist throughout the criminal process to test witness credibility.

If any incentives are offered, they have to be disclosed and should be given after a witness has provided their evidence and not as an inducement to testify, he says. (Berry says the phone and car provided to secret witness B in the Scott Watson case before the trial wasn’t standard procedure.)

He insists they don’t tap prisoners on the shoulder to see if they can come up with information on an accused. “That’s not how we operate.” But that’s precisely what was done in the Stephen Hudson case, when police approached 300 inmates, asking if Hudson had confessed to them and offering a reward. (Police won’t disclose if a reward was paid to any of the jailhouse witnesses who claimed Hudson confessed to them, or anyone else.)
The police argument for using such witnesses is that they have an obligation to put forward any evidence of confessions, even if it’s from a criminal, and it’s up to lawyers to test their credibility and juries to decide if they’re truthful.|

However, Matthew Gerrie, manager of New Zealand’s Innocence Project, points out juries often appear to behave counter-intuitively faced with a jailhouse confession. “In a normal setting, a person with a criminal history is usually not believed because they’re seen as being a devious person. But for some reason, juries seem to be more willing to believe a jailhouse informant purely because of their criminal background and being in with the defendant or having some kind of special information which makes them more believable – which, of course, seems to be a paradox.”

Scott Watson’s father, Chris, is cynical of checks that supposedly expose cellmates who are inventing evidence, saying cross-examination merely gives them an opportunity to repeat their dubious evidence. “Another effect is, ‘These are the guys the accused hangs out with, these are his friends.’ It’s all so dramatic. They’re as much an exhibit as a witness.”

Chris Watson says there wasn’t one verifiable fact presented by the secret witnesses in his son’s case – it was just a story, with no supporting evidence and no chance to prove differently.

Equally, Gerald Hope now seriously questions the secret witnesses’ role at Watson’s trial. “Honestly, today, I think they should not have been used. I think it was unfair and it was cruel and I think it primed the jury to reinforce their certainty of conviction – that they were doing the right thing by putting him away.”

And does he believe the secret witnesses, who he found so persuasive and had such an impact on the case, were telling the truth?


Lundy trial's "Witness X"

The murky world of prison informants again raised its head at the 2015 retrial of Mark Lundy. Police produced “Witness X”, who had been in jail with Lundy in 2002. At trial, the man (whose criminal history stretched over 20 years and included dishonesty and fraud offences) claimed Lundy had admitted killing his wife and daughter. He said Lundy had told him his wife “had it coming to her” and he wouldn’t be in prison if his daughter hadn’t seen what happened.

Witness X also insisted Lundy said he was waiting for his appeal on his murder conviction.
However, the informant didn’t speak up until 2014 when again in prison. Witness X claimed he had “the smoking gun of all smoking guns,” and would reveal this information if granted bail, adding he would do “anything else the police require of me” to put Lundy back in prison.

At trial, it was exposed that Witness X was described in probation reports as “a very manipulative offender”, and had only extremely limited chances to have met Lundy. Moreover, his claim Lundy said he was waiting for an appeal was impossible – at the time of the alleged confession, Lundy’s original trial was still continuing and he hadn’t been convicted.


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