LOUISVILLE, Ky. (WDRB) – It was an emotionally raw moment in a city that had already experienced a record-setting number of murders.
Lt. Emily McKinley, head of the Louisville Metro Police Department’s Homicide Unit, cried as she described in vivid detail how a 5-year-old boy was found standing next to a dying man he called dad just days before Christmas in 2016.
Two men were later arrested and charged with the Dec. 17, 2016 shooting death of 51-year-old George Robert Brown – and the case against alleged gunman Isaiah Jenkins seemed to be strengthened by an eyewitness to the slaying.
The eyewitness was Jenkins’ co-defendant, Derrick Taylor, who as part of a plea deal agreed to testify that Jenkins shot Brown after the two men got into an argument during a drug buy.
Taylor is now accused of making the story up.
And his testimony was the only evidence prosecutors presented to a Jefferson County grand jury.
Now, the Jefferson Commonwealth’s Attorney’s office has asked a judge to revoke that plea offer after hearing a recording of Taylor admitting to a family member that he lied to investigators, saying he considered his prosecution a “game” and he was “gonna beat them people,” according to court documents.
Jenkins’ attorneys, Julie Kaelin and Karen Faulkner, are asking that the murder case against him be dismissed, arguing the grand jury heard false testimony.
The two long-time defense attorneys say the case is an example of myriad problems that arise when an informant becomes the key witness for prosecutors.
“It is well known that heavily incentivized informant testimony is a leading cause of wrongful convictions,” the attorneys said in a statement. “When the state makes an informant an offer that is almost irresistible, and then uses that information to indict another person without corroborating it, we should all be extremely suspect of the motivations behind it.”
They added: “Informants often lie.”
In a report from the Center of Wrongful Convictions, Northwestern University researchers found so-called “snitch” testimony to the “the leading cause of wrongful convictions” in death penalty cases.
And Louisville has seen several problematic cases involving such testimony in recent years.
“It’s a culture in our prosecutor’s office here to do this,” said Louisville defense attorney Ted Shouse, who formerly worked for the Kentucky Innocence Project. “It’s an old-fashioned way of doing things. I can’t believe we’re still doing it.”
In March, Shouse and defense attorney Annie O’Connell represented Charles Washington in a death penalty murder trial. The key evidence – Shouse and O’Connell claim the only evidence – was two co-defendants who testified that Washington shot and killed a man during a 2013 home invasion.
But once on the stand, the testimony of the two co-defendants fell apart, their stories changing from what they told investigators.
In one extraordinary moment, Shouse wrote out 10 instances where co-defendant Shakahakeen Boyd admitted testifying untruthfully.
“Lie. Lie. Lie. Lie …,” Shouse told jurors while pointing to a white board with Boyd’s factual mistruths.
A jury acquitted Washington of all charges, a rarity in death penalty cases.
In an interview last week, Shouse said prosecutors take advantage of poor defendants who are often locked up and are willing to testify falsely in order to get out of jail and avoid long prison sentences.
“They are told you can either go to trial and face 20 to 50 years in prison or testify against your co-defendant and receive a sentence of 5,6, 7 years,” he said. “That’s a really tough choice for someone to make. … It produces inherently unreliable testimony. People have a motivation to shade their version of events. ”
Kerry Porter, who received $7.5 million in compensation from the city of Louisville earlier this year for 11 years he spent behind bars was wrongfully convicted based in large part on coerced identification and the false testimony of two jailhouse informants, according to his lawsuit.
In another case, James Mallory who wrote a letter from prison to prosecutors in 2011 telling them he had key evidence he was willing to provide in several unsolved cases.
After prosecutors helped secure his release, Mallory denied that he had information on those cases. (He was later charged in the 2012 murder of a 15-year-old boy.)
A 2011 American Bar Association study found Kentucky doesn’t impose rules on prosecutors using informants in capital cases – or evaluating the results.
During trials, prosecutors typically defend testimony of informants, or “incentivized witnesses,” telling jurors they can’t choose upstanding members of the community as witnesses, but are instead stuck with those who are around the crimes and have information.
And prosecutors have said so-called snitches have helped lead to convictions in cases where there were no other witnesses – crimes that would remain unsolved were it not for their testimony.
Commonwealth’s Attorney Tom Wine was out of town last week and no one else from the office agreed to an interview. A statement was provided to WDRB News on behalf of the office.
“Our office encourages witnesses with information about criminal activity to come forward and provide the information to law enforcement,” according to the statement.
“This includes co-defendants and other witnesses. When information about criminal activity is provided directly to our office, we provide the information to law enforcement for investigation and corroboration of the information. Our office further evaluates the information after it is investigated by law enforcement. If the information provided is determined to be credible and can be corroborated, it is used to support the prosecution of the case in question.”
No longer the national norm
On Sept. 12, a prosecutor told Judge Susan Schultz Gibson the office wanted to revoke Taylor’s plea agreement, providing her the recording with a motion. The recording is not available in court records.
Defense attorney Rob Eggert told the judge Taylor had not violated the plea agreement.
“All he is done is stay alive,” Eggert said, asking the judge for a new date to review the new information.
Gibson set a hearing date for Nov. 28.
The Jefferson Commonwealth’s Attorney’s office would not discuss the case.
“For ethical reasons, our office does not comment on pending cases,” according to a statement sent to WDRB.
Shouse said he believes “snitch” testimony – or at least relying solely on it – is actually falling throughout much of the country because jurors are more sophisticated now thanks to the glut of television shows and documentaries about trials.
“I do not think it is the norm in the United States today,” he said.
And some states have taken steps to ensure such testimony is not bogus.
Last year, Texas signed into law a bill requiring prosecutors to maintain a database of informant information, including all of the cases they have testified in and the benefits they have received. Prosecutors also have to provide all of the information to the defense, including prior alleged offenses even if they weren’t convicted.
In California, the top prosecutor must approve the use of each informant and a 2011 law bans using their uncorroborated testimony.
In Illinois, a bill was passed last year that requires “reliability hearings” before “snitch” testimony can be used at trial.
Staffers at the Kentucky Legislative Research Commission could not immediately find any record of current or past proposed bills dealing with the issue.
“There absolutely should be some” guidelines in Kentucky, said Ryan Vantrease, who was a prosecutor with the Jefferson Commonwealth’s Attorney’s office and is now a defense attorney.
“Often times they are the only witness to a crime or have information the police would never be able to get,” Vantrease said. “So it’s a balancing act. They are often in possession of the information you need and there is no other avenue to get it. … But there are cases all across the country of people being wrongfully convicted because of snitch testimony.”
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