The Miami Herald - Jailed Informants Spark Legal debate

JUSTICE
By Scott Hiaasen
shiaasen@herald.com

The American Bar Association wants to curb the controversial practice of using jailhouse informants, fearing it could lead to wrongful convictions.

It seemed like the greatest stroke of luck when a tipster called the Miami-Dade homicide bureau with information about the killing of Jose Patino — a murder that remained unsolved for years.

The bad news for investigators: The caller was a federal prison inmate in New York. The tip did lead to the arrest of 36-year-old Manuel Calderon, a convicted drug smuggler from New Jersey who allegedly admitted while in prison that he shot Patino in a Colombian cartel hit in 1992.

But a Miami-Dade jury had a hard time believing the state's two main witnesses. One was a cocaine smuggler who had 19 years shaved from his sentence for testifying in another trial; the other, an admitted killer and cartel enforcer serving 28 years. Calderon's murder trial ended in March in a hung jury.

Calderon's first trial — his second is scheduled to begin this week — can be seen as a cautionary tale in the use of jailhouse informants, a common practice in federal and state courts that has fueled an increasing amount of criticism in recent years.

Police and prosecutors routinely receive calls from jail inmates offering information about their neighbors in the cellblock — some of it true, some exaggerated, some false.

Though many prosecutors wince at the prospect of calling a criminal to the witness stand, they say informants are often needed to solve crimes or uncover criminal conspiracies.

"When you're in prison, you don't talk to priests. You talk to other inmates," said Assistant State Attorney Abbe Rifkin, who is prosecuting Calderon. "Sometimes you need a thief to catch a thief."

But such assistance is rarely free: Inmates expect reduced sentences, forgiven crimes or other favors in exchange for testimony.

Many inmates avidly try to befriend others in jail in an attempt to glean information they can use for themselves — and the more high-profile the defendant, the more of these "friends" he or she may have.

"Everyone in prison knows the way you get out of federal prison is to provide information on somebody else. That's the main topic of conversation," said Larry Handfield, Calderon's lawyer.

It's a lesson Calderon took to heart: Before his arrest in the Patino murder, he won early release from prison after cooperating with prosecutors in a narcotics case.

Because informants often benefit from their testimony, their credibility is easily attacked by defense lawyers who say they have an incentive to lie. And they don't play well in front of jurors, who often view criminals with suspicion.

Some legal analysts consider the use of jailhouse informants among the most corrosive practices in criminal courts. Defense lawyers complain that the exchange of testimony for leniency gives prosecutors an unfair advantage, because defense lawyers can make no such bargains.

Several years ago, U.S. District Judge William J. Zloch of Fort Lauderdale said rewarding criminals for testimony was tantamount to bribery.

The problem is hardly limited to Miami. Earlier this year, the American Bar Association passed a resolution urging prosecutors to limit the use of jailhouse informants, fearing they could lead to wrongful convictions.

And some other states have increased judges' oversight of jailhouse testimony.

In Florida, jurors are commonly instructed to consider whether a witness received a benefit for their testimony when weighing the evidence.

Defense lawyers say the greatest danger is that an informant will embellish or invent a jailhouse confession. That's why many lawyers instruct their clients not to share information with others in jail, fearing that their clients will confess, or that other inmates will say they did.

"I explain that every person in custody who appears to be your 'friend' should be viewed as someone who will rat you out in a second to save themselves," defense attorney Mark Eiglarsh said.

Still, it's common for inmates to talk, either out of braggadocio or boredom. Longtime defense lawyer Ed O'Donnell said he refuses to send legal papers to his clients in jail, fearing that other inmates could read them and learn enough about a case to conjure a fake confession.

"It's possible to get a conviction based on fabricated information," said Neal Sonnett, a Miami defense lawyer and former federal prosecutor. "It's not difficult for somebody to know what police are looking for."

Arguably the most prolific informant in the Miami-Dade jail is Robin Lunceford. A robbery suspect and career criminal, Lunceford has offered police information about four murder defendants she met in jail, including Geralyn Graham, the caregiver for missing foster child Rilya Wilson.

Lunceford said that while she and Graham shared a jail cell one day last year, Graham admitted that she smothered Rilya. Lunceford's testimony is crucial to the Rilya case because the child's body has not been found.

In a recent interview with The Herald, Lunceford said she gained the trust of many fellow inmates by helping them prepare legal papers for court.

"In prison, women, they confess, they talk," Lunceford said. "You would be amazed at the concessions that come your way."

But the more helpful Lunceford was with police, the more she was attacked by Graham's lawyer, Brian Tannebaum, as a snitch willing to say anything to avoid jail time. In recent weeks, prosecutors have dropped Lunceford as a witness in two murder cases, though she remains the main witness against Graham.

Prosecutors say jailhouse informants such as Lunceford can be effective witnesses as long as their testimony is corroborated independently — either through other witnesses or physical evidence.

Rifkin said she warns potential jurors during jury selection that they will hear testimony from criminals seeking a lighter sentence in exchange for their testimony — but that doesn't mean the testimony isn't true.

While some prosecutors may dress their witnesses in tidy clothes — much as defense lawyers soften their clients with sweaters and collared shirts — Rifkin insists in her cases that the informants appear in their prison jumpsuits.

"I tell [jurors] up front, you are not going to like these people," Rifkin said. "I don't ever want a jury to think I'm trying to make them something they are not."