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Let’s try to visualize the most unfair criminal trial we can imagine. Let’s make a
list of elements that might be part of such an unjust proceeding.
The list might include the following elements.
1. The judge excuses one potential jury member after another who states that he or she could not in good conscience recommend the death penalty.
2. The evidence in support of convicting the defendant consists entirely of testimony by other prisoners.
Each of these elements was present in the trial of George Skatzes, who was found guilty and sentenced to death for the aggravated murder of prisoners Earl Elder and David Sommers. In addition, in the portion of the trial concerning Mr. Elder’s death:
3. Skatzes was sentenced to death for allegedly ordering prisoner Rodger Snodgrass to murder Earl Elder. But Snodgrass, a prosecution witness, testified that Elder was still alive when he left Elder’s cell.
4. The medical examiner testified that Elder’s fatal wounds were caused by a broad blade. However, Snodgrass himself as well as another prosecution witness, Tim Williams, testified that the weapon supposedly carried by Snodgrass was a thin, icepick- like shank that made small, round holes.
5. Tim Williams was himself named by two other prisoners as one of the three men who actually killed Elder. Williams is now on the street.
6. Another prisoner, Eric Girdy, has confessed to being one of those three men. Girdy has repeatedly stated under oath that Skatzes was nowhere around at the time and had nothing to do with what happened.
7. Girdy testified that the weapon he used was a piece of broken glass from an officers’ restroom. The medical examiner testified that he found a shard of glass in one of the potentially lethal wounds made by a broad blade.
8. Girdy’s belated confession was accepted as true by the special prosecutor and Girdy was duly sentenced in the Scioto County Court of Common Pleas. In the portion of the trial concerning the murder of David Sommers:
9. Several weeks after Skatzes was convicted and sentenced to death for Sommers’ homicide, prisoner Aaron Jefferson, in a separate trial, was found guilty of allegedly committing the same murder.
10. As in the trial of Skatzes, when Jefferson was tried for killing Sommers the medical examiner testified once again that Sommers had died as the result of a single, fatal blow by an instrument like a baseball bat. Thus two men were found guilty of striking the same lethal blow.
11. An Ohio Court of Appeals determined that there was no way to prove which man had struck the fatal blow, but Skatzes was guilty anyway because of his “complicity” in the murder and his sentence of death should be affirmed. Nothing has been done to vacate George Skatzes’ death sentence for the aggravated murders of Elder and Sommers.
What Skatzes Says
George Skatzes has written a statement from which the following are excerpts:
Twenty eight years and counting! I am totally at my wits’ end! Please let me explain! Please hear me out!
The testimony by the inmates in the Earl Elder murder was contradicted and undermined by the testimony of the forensic pathologist. Yet all this means nothing to the courts! George Skatzes was found guilty and that is that! Justice?
Ohio Jury Instructions 409.56, Other Causes, Intervening Causes, states: “If the defendant inflicted an injury not likely to produce death, and if the sole and only cause of death was a fatal injury inflicted by another person, the defendant who inflicted the original injury is not responsible for the death.” [George adds: There is nothing true about Snodgrass’ testimony. But if, for the sake of argument, we assumed that Snodgrass was telling the truth, since Snodgrass said Elder was alive when Snodgrass left his cell, under Jury Instruction 409.56 Skatzes could only have been guilty of attempted murder.]
In the case of David Sommers, there is no physical evidence to link George Skatzes to the crime. The inmates who testified against George Skatzes are self-admitted participants in the murder!
We have two people convicted for causing the death of David Sommers by dealing a single massive blow to the head. Two people convicted for the very same act? The object is, of course, to convict at any cost!
Summing up his trial and convictions, Skatzes declares:
We have a man convicted and sentenced to death only on the word of jailhouse snitches. It was their word alone without any independent objective and corroborating evidence.
Law Versus Justice
In three aspects of the courts’ proceedings concerning Mr. Skatzes and others of the Lucasville Five, prosecutors have been able to cite and rely on the law as pronounced by state and federal courts. But that doesn’t mean that these convictions and sentencse are just! It only means that Skatzes, like other Lucasville defendants, is a victim of what he calls “the criminal injustice system.”
Let’s consider three of the judicial doctrines that stand between Lucasville defendants and light at the end of the tunnel.
The Death Qualified Jury
A jury’s recommendation of the death penalty must be unanimous. It takes only one juror in twelve to prevent a recommendation for death.
But under current law in state and federal courts, any potential juror who states that he or she opposes the death penalty under all circumstances will almost surely be “excused,” that is, excluded, from jury service in a capital case.
In contrast, a juror who indicates support for the death penalty is asked another question, namely, Would you follow the instructions of the judge about the law? If the juror answers, Yes, then that juror may be seated even though he or she favors the death penalty just as strongly as opponents of the death penalty oppose it.
The following extracts show the doctrine of the “death qualified jury” at work during the “voir dire” (jury selection process) in the case of George Skatzes.
Juror #1
THE COURT: . . . I have a question I want to ask you. . . . [I]n a proper case where the facts warrant it and the law permits it, could you join in with others in signing a verdict form which might recommend to the Court the imposition of the death penalty?
A: No, sir.
THE COURT: You don’t believe you could do so?
A: I don’t believe so.
THE COURT: Under any circumstances?
A: No.
THE COURT: Could you tell me why?
A: I had a brother who was murdered and I found it in my heart to forgive that man. I would not have found him guilty to the extent that his life would be taken.
THE COURT: In other words, you feel that if you didn’t do it in your brother’s case, you wouldn’t do it in any other case, right?
A: Right. . . .
[DEFENSE ATTORNEY]: . . . Do you feel that this is a teaching of your church?
A: Not so much a teaching of my church as it is an understanding of mine that I do not create life. I am not giver of life, so I feel that it’s not my responsibility or within reason to expect me to take a life. . . .
THE COURT: You may step down.
Juror #8
THE COURT: . . . In a proper case, where the facts warrant it and the law permits it, could you join in with the other jurors in signing a verdict form which would recommend to the Court the death penalty?
A: Yes, your Honor.
[PROSECUTING ATTORNEY]: . . . We brought you here because we want to discuss with you your views on capital punishment. Can you share them with us, please?
A: I strongly believe in them. I wish they were enforced more often.
[PROSECUTING ATTORNEY]: . . . Do you believe the death penalty is the only appropriate penalty in all cases of an intentional killing?
A: Pretty much.
[PROSECUTING ATTORNEY]: Does that mean?
A: Yes.
[PROSECUTING ATTORNEY]: . . . You can think of the wors[t] crime that comes to your mind and if you find that person guilty at the first phase, we don’t go straight to death. We have the second hearing at which point you would get additional evidence to consider in making your decision as to what punishment is appropriate. . . .
What we need to know is whether you could set aside your thoughts as to what you think the law should be and follow the law that the Judge gives you?
A: Yes.
[PROSECUTING ATTORNEY]: If you found someone guilty of a horrible, horrible crime, as bad as you can think of, would you be willing to keep an open mind and listen to the evidence at the second phase before making a decision as to which penalty is appropriate?
A: Yes.
[PROSECUTING ATTORNEY]: No matter how bad the crime?
A: Yes. . . .
THE COURT: . . . We want you back [to serve as a juror in the case]. With the doctrine of the death-qualified jury before us, there should be no difficulty in understanding why, in such a high percentage of cases, Lucasville prosecutors either won a favorable jury decision or entered into a favorable plea agreement. At one public forum concerning George Skatzes, known to fellow prisoners as “Big George,” an attender who had read the dialogue between the judge and potential jurors commented: “Big George is in Big Trouble.”
Studies cited by the American Bar Association and the American Law Institute indicate that the process of selecting a death-qualified jury produces juries that are more likely to convict the defendant during the guilt phase of the trial, and more likely to impose the death penalty during the sentencing phase. John Paul Stevens, retired Justice of the United States Supreme Court, stated when he was on the bench that this rule “deprive[s] the defendant of a trial by jurors representing a fair cross-section of the community.” He is convinced that “the process of obtaining a ‘death qualified jury’ is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction.”
The Doctrine of Complicity
A familiar hypothetical presents the problem of a group of bank robbers. Robber A is the driver of the getaway car. While his companions enter the bank, he stays at the wheel of their vehicle, perhaps listening to the car radio or reading the newspaper. Meantime, the men actually in the bank encounter difficulties, there is a scuffle, robber B uses his gun, and a bank teller falls to the floor, dead.
What should be the punishment of robber A? Under Ohio law he can be found to be “complicit” in the entire criminal course of conduct, and presumed to be just as guilty as the man who pulled the trigger. Moreover, whereas under Ohio law someone guilty of “conspiracy” to rob the bank would not be eligible for the death penalty, under the Ohio law of “complicity” every one in the group would be exposed to the possibility of execution.
After Aaron Jefferson was convicted of striking the same fatal blow for which George Skatzes had been convicted, an Ohio Court of Appeals considered the case. The court began its explanation by stating: “Skatzes contends that his due process rights were violated because the state charged and convicted two inmates—Skatzes and Aaron Jefferson—with the murder of David Sommers, when the evidence suggested only one fatal blow. He argues that these [were] ‘inherently factually contradictory theories’.”
Not so, the court continued. “The state’s theory was that both Skatzes and Jefferson were complicit in the crime; there was no way to prove who had inflicted the fatal head injury. . . . A defendant charged with an offense may be convicted of that offense upon proof that he was complicit in its commission.” The court may not have read the transcript of the Skatzes and Jefferson trials. In closing argument in the Skatzes trial, Prosecutor Daniel Hogan did not say, “there was no way to prove who had inflicted the fatal head injury.” Rather, Hogan asked the jury to think “about David Sommers, . . . the one where [Skatzes] wielded a bat and literally beat the brains out of this man’s head.” State v. Skatzes, p. 6108. And in the Jefferson trial, Prosecutor Crowe told the jury:
If there was only one blow to the head of David Sommers, the strongest evidence you have [is that] this is the individual—I won’t call him a human—this is the individual that administered that blow. . . . If there was only one blow, he’s the one that gave it. He’s the one that hit him like a steer going through the stockyard, the executioner with the pick axe, trying to put the pick through the brain.
State v. Jefferson, Tr. at 656-57.
The court also failed to mention that whereas Jefferson was sentenced to many years behind bars, Skatzes was sentenced to death. Jason Robb was the victim of a prosecution theory about Sommers’ murder that was equally bizarre. According to prosecution witnesses, Sommers chased Robb from L- 2 to L-7, where Sommers was beaten to death by prisoners other than Robb. Yet Robb was convicted and sentenced to death for Sommers’ murder!
Ineffective Prohibition of Snitch Testimony
Heightened reliability is required in capital cases. Convictions based on the testimony of informants, who are offered reduced charges, parole, or other benefits in exchange for their testimony, are inherently unreliable in the absence of independent and objective corroborating evidence connecting the defendant to the crime.
In recognition of the unreliability of informant testimony, the House of Delegates of the American Bar Association resolved on February 14, 2005, that the ABA “urges federal, state, local, and territorial governments to reduce the risk of convicting the innocent, while increasing the likelihood of convicting the guilty, by ensuring that no prosecution should occur based solely upon uncorroborated jailhouse informant testimony.” Likewise, the California Commission on the Fair Administration of Justice declared in 2006: A conviction can not be had upon the testimony of an in-custody informant unless it shall be corroborated by such other evidence as shall independently tend to connect the defendant with the commission of the offense . . . . Corroboration of an in-custody informant cannot be provided by the testimony of another in-custody informant.
The Lucasville prosecutions ignored the necessity for objective corroboration of informant testimony. The uncorroborated testimony of prisoner informants, so-called “snitch” testimony, was the principal basis for every Lucasville capital conviction.
One way in which Ohio seeks to guard against the perjury of snitches is by requiring the judge to give the following instruction to the jury. The testimony of an accomplice does not become inadmissible because of his complicity, moral turpitude, or self-interest, but the admitted or claimed complicity of a witness may affect his credibility and make his testimony subject to grave suspicion, and require that it be weighed with great caution.
However, common sense suggests that reading to a jury a long sentence that begins with a double negative and is made up of polysyllabic and unfamiliar words is unlikely to protect a defendant. Prosecutors have many ways to make perjured testimony appear convincing to a jury. For example, an informer may describe the scene of a crime with seeming truthfulness since, after all, often the witness was actually there and simply ascribes to others the actions he himself committed.
The Lucasville prosecutors used a variety of techniques to procure compliant prisoner informants and prepare them for trial. In Skatzes’ trial, prosecutor (now Ohio judge) Daniel Hogan admitted that Daniel Stead, who prosecuted the trial with him, had told a wavering prisoner, “you are either going to be my witness, or I’m going to come back and try to kill you.” In preparing prisoner Robert Brookover as a witness, prosecutors hit him with a rolled-up newspaper until he stopped beginning each sentence of his testimony with the words, “I’m not going to lie to you.” And by bringing potential prosecution witnesses together at the so-called “snitch academy” in Lima, Ohio, prosecutors sought to ensure that their witnesses at trial would tell consistent stories.
Ohio court opinions also emphasize, as a second shield against unreliable snitch testimony, the right of the defense to cross-examine prosecution witnesses. But this right was systematically obstructed by Lucasville prosecutors. Typically, officers of the Ohio State Highway Patrol interviewed potential prosecution witnesses as many as half a dozen times before trial. Summaries of these interviews were then entered into a computer database. But only when the witness began to provide the narrative that the prosecution desired were his remarks likely to be preserved in the form of a tape-recorded interview or deposition. This prosecution-friendly final product could then be provided to the defense in “discovery.” The database entries might have revealed how much the testimony of the witness had changed over time as it was shaped by interviewers from the state. These entries were often not produced. But in Keith LaMar’s case, prosecutors successfully impeached the testimony of defense witness Gino Washington by using interview records that had not been produced in discovery.
Defense Alternatives
Lucasville capital defendants were faced with an excruciating choice.
If they had not killed anyone during the eleven days, they had the right to go to trial and try to convince a jury of their innocence. But their juries would be made up of men and women willing to recommend the death penalty; their trials would be governed by the doctrine of complicity; and their trial court judges would have no way to assure defendants of the good faith and credibility of prosecution witnesses.
However if, recognizing that the dice were loaded, the defendant elected to plea bargain, the best possible outcome was likely to be imprisonment for life.
1. The judge excuses one potential jury member after another who states that he or she could not in good conscience recommend the death penalty.
2. The evidence in support of convicting the defendant consists entirely of testimony by other prisoners.
Each of these elements was present in the trial of George Skatzes, who was found guilty and sentenced to death for the aggravated murder of prisoners Earl Elder and David Sommers. In addition, in the portion of the trial concerning Mr. Elder’s death:
3. Skatzes was sentenced to death for allegedly ordering prisoner Rodger Snodgrass to murder Earl Elder. But Snodgrass, a prosecution witness, testified that Elder was still alive when he left Elder’s cell.
4. The medical examiner testified that Elder’s fatal wounds were caused by a broad blade. However, Snodgrass himself as well as another prosecution witness, Tim Williams, testified that the weapon supposedly carried by Snodgrass was a thin, icepick- like shank that made small, round holes.
5. Tim Williams was himself named by two other prisoners as one of the three men who actually killed Elder. Williams is now on the street.
6. Another prisoner, Eric Girdy, has confessed to being one of those three men. Girdy has repeatedly stated under oath that Skatzes was nowhere around at the time and had nothing to do with what happened.
7. Girdy testified that the weapon he used was a piece of broken glass from an officers’ restroom. The medical examiner testified that he found a shard of glass in one of the potentially lethal wounds made by a broad blade.
8. Girdy’s belated confession was accepted as true by the special prosecutor and Girdy was duly sentenced in the Scioto County Court of Common Pleas. In the portion of the trial concerning the murder of David Sommers:
9. Several weeks after Skatzes was convicted and sentenced to death for Sommers’ homicide, prisoner Aaron Jefferson, in a separate trial, was found guilty of allegedly committing the same murder.
10. As in the trial of Skatzes, when Jefferson was tried for killing Sommers the medical examiner testified once again that Sommers had died as the result of a single, fatal blow by an instrument like a baseball bat. Thus two men were found guilty of striking the same lethal blow.
11. An Ohio Court of Appeals determined that there was no way to prove which man had struck the fatal blow, but Skatzes was guilty anyway because of his “complicity” in the murder and his sentence of death should be affirmed. Nothing has been done to vacate George Skatzes’ death sentence for the aggravated murders of Elder and Sommers.
What Skatzes Says
George Skatzes has written a statement from which the following are excerpts:
Twenty eight years and counting! I am totally at my wits’ end! Please let me explain! Please hear me out!
The testimony by the inmates in the Earl Elder murder was contradicted and undermined by the testimony of the forensic pathologist. Yet all this means nothing to the courts! George Skatzes was found guilty and that is that! Justice?
Ohio Jury Instructions 409.56, Other Causes, Intervening Causes, states: “If the defendant inflicted an injury not likely to produce death, and if the sole and only cause of death was a fatal injury inflicted by another person, the defendant who inflicted the original injury is not responsible for the death.” [George adds: There is nothing true about Snodgrass’ testimony. But if, for the sake of argument, we assumed that Snodgrass was telling the truth, since Snodgrass said Elder was alive when Snodgrass left his cell, under Jury Instruction 409.56 Skatzes could only have been guilty of attempted murder.]
In the case of David Sommers, there is no physical evidence to link George Skatzes to the crime. The inmates who testified against George Skatzes are self-admitted participants in the murder!
We have two people convicted for causing the death of David Sommers by dealing a single massive blow to the head. Two people convicted for the very same act? The object is, of course, to convict at any cost!
Summing up his trial and convictions, Skatzes declares:
We have a man convicted and sentenced to death only on the word of jailhouse snitches. It was their word alone without any independent objective and corroborating evidence.
Law Versus Justice
In three aspects of the courts’ proceedings concerning Mr. Skatzes and others of the Lucasville Five, prosecutors have been able to cite and rely on the law as pronounced by state and federal courts. But that doesn’t mean that these convictions and sentencse are just! It only means that Skatzes, like other Lucasville defendants, is a victim of what he calls “the criminal injustice system.”
Let’s consider three of the judicial doctrines that stand between Lucasville defendants and light at the end of the tunnel.
The Death Qualified Jury
A jury’s recommendation of the death penalty must be unanimous. It takes only one juror in twelve to prevent a recommendation for death.
But under current law in state and federal courts, any potential juror who states that he or she opposes the death penalty under all circumstances will almost surely be “excused,” that is, excluded, from jury service in a capital case.
In contrast, a juror who indicates support for the death penalty is asked another question, namely, Would you follow the instructions of the judge about the law? If the juror answers, Yes, then that juror may be seated even though he or she favors the death penalty just as strongly as opponents of the death penalty oppose it.
The following extracts show the doctrine of the “death qualified jury” at work during the “voir dire” (jury selection process) in the case of George Skatzes.
Juror #1
THE COURT: . . . I have a question I want to ask you. . . . [I]n a proper case where the facts warrant it and the law permits it, could you join in with others in signing a verdict form which might recommend to the Court the imposition of the death penalty?
A: No, sir.
THE COURT: You don’t believe you could do so?
A: I don’t believe so.
THE COURT: Under any circumstances?
A: No.
THE COURT: Could you tell me why?
A: I had a brother who was murdered and I found it in my heart to forgive that man. I would not have found him guilty to the extent that his life would be taken.
THE COURT: In other words, you feel that if you didn’t do it in your brother’s case, you wouldn’t do it in any other case, right?
A: Right. . . .
[DEFENSE ATTORNEY]: . . . Do you feel that this is a teaching of your church?
A: Not so much a teaching of my church as it is an understanding of mine that I do not create life. I am not giver of life, so I feel that it’s not my responsibility or within reason to expect me to take a life. . . .
THE COURT: You may step down.
Juror #8
THE COURT: . . . In a proper case, where the facts warrant it and the law permits it, could you join in with the other jurors in signing a verdict form which would recommend to the Court the death penalty?
A: Yes, your Honor.
[PROSECUTING ATTORNEY]: . . . We brought you here because we want to discuss with you your views on capital punishment. Can you share them with us, please?
A: I strongly believe in them. I wish they were enforced more often.
[PROSECUTING ATTORNEY]: . . . Do you believe the death penalty is the only appropriate penalty in all cases of an intentional killing?
A: Pretty much.
[PROSECUTING ATTORNEY]: Does that mean?
A: Yes.
[PROSECUTING ATTORNEY]: . . . You can think of the wors[t] crime that comes to your mind and if you find that person guilty at the first phase, we don’t go straight to death. We have the second hearing at which point you would get additional evidence to consider in making your decision as to what punishment is appropriate. . . .
What we need to know is whether you could set aside your thoughts as to what you think the law should be and follow the law that the Judge gives you?
A: Yes.
[PROSECUTING ATTORNEY]: If you found someone guilty of a horrible, horrible crime, as bad as you can think of, would you be willing to keep an open mind and listen to the evidence at the second phase before making a decision as to which penalty is appropriate?
A: Yes.
[PROSECUTING ATTORNEY]: No matter how bad the crime?
A: Yes. . . .
THE COURT: . . . We want you back [to serve as a juror in the case]. With the doctrine of the death-qualified jury before us, there should be no difficulty in understanding why, in such a high percentage of cases, Lucasville prosecutors either won a favorable jury decision or entered into a favorable plea agreement. At one public forum concerning George Skatzes, known to fellow prisoners as “Big George,” an attender who had read the dialogue between the judge and potential jurors commented: “Big George is in Big Trouble.”
Studies cited by the American Bar Association and the American Law Institute indicate that the process of selecting a death-qualified jury produces juries that are more likely to convict the defendant during the guilt phase of the trial, and more likely to impose the death penalty during the sentencing phase. John Paul Stevens, retired Justice of the United States Supreme Court, stated when he was on the bench that this rule “deprive[s] the defendant of a trial by jurors representing a fair cross-section of the community.” He is convinced that “the process of obtaining a ‘death qualified jury’ is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction.”
The Doctrine of Complicity
A familiar hypothetical presents the problem of a group of bank robbers. Robber A is the driver of the getaway car. While his companions enter the bank, he stays at the wheel of their vehicle, perhaps listening to the car radio or reading the newspaper. Meantime, the men actually in the bank encounter difficulties, there is a scuffle, robber B uses his gun, and a bank teller falls to the floor, dead.
What should be the punishment of robber A? Under Ohio law he can be found to be “complicit” in the entire criminal course of conduct, and presumed to be just as guilty as the man who pulled the trigger. Moreover, whereas under Ohio law someone guilty of “conspiracy” to rob the bank would not be eligible for the death penalty, under the Ohio law of “complicity” every one in the group would be exposed to the possibility of execution.
After Aaron Jefferson was convicted of striking the same fatal blow for which George Skatzes had been convicted, an Ohio Court of Appeals considered the case. The court began its explanation by stating: “Skatzes contends that his due process rights were violated because the state charged and convicted two inmates—Skatzes and Aaron Jefferson—with the murder of David Sommers, when the evidence suggested only one fatal blow. He argues that these [were] ‘inherently factually contradictory theories’.”
Not so, the court continued. “The state’s theory was that both Skatzes and Jefferson were complicit in the crime; there was no way to prove who had inflicted the fatal head injury. . . . A defendant charged with an offense may be convicted of that offense upon proof that he was complicit in its commission.” The court may not have read the transcript of the Skatzes and Jefferson trials. In closing argument in the Skatzes trial, Prosecutor Daniel Hogan did not say, “there was no way to prove who had inflicted the fatal head injury.” Rather, Hogan asked the jury to think “about David Sommers, . . . the one where [Skatzes] wielded a bat and literally beat the brains out of this man’s head.” State v. Skatzes, p. 6108. And in the Jefferson trial, Prosecutor Crowe told the jury:
If there was only one blow to the head of David Sommers, the strongest evidence you have [is that] this is the individual—I won’t call him a human—this is the individual that administered that blow. . . . If there was only one blow, he’s the one that gave it. He’s the one that hit him like a steer going through the stockyard, the executioner with the pick axe, trying to put the pick through the brain.
State v. Jefferson, Tr. at 656-57.
The court also failed to mention that whereas Jefferson was sentenced to many years behind bars, Skatzes was sentenced to death. Jason Robb was the victim of a prosecution theory about Sommers’ murder that was equally bizarre. According to prosecution witnesses, Sommers chased Robb from L- 2 to L-7, where Sommers was beaten to death by prisoners other than Robb. Yet Robb was convicted and sentenced to death for Sommers’ murder!
Ineffective Prohibition of Snitch Testimony
Heightened reliability is required in capital cases. Convictions based on the testimony of informants, who are offered reduced charges, parole, or other benefits in exchange for their testimony, are inherently unreliable in the absence of independent and objective corroborating evidence connecting the defendant to the crime.
In recognition of the unreliability of informant testimony, the House of Delegates of the American Bar Association resolved on February 14, 2005, that the ABA “urges federal, state, local, and territorial governments to reduce the risk of convicting the innocent, while increasing the likelihood of convicting the guilty, by ensuring that no prosecution should occur based solely upon uncorroborated jailhouse informant testimony.” Likewise, the California Commission on the Fair Administration of Justice declared in 2006: A conviction can not be had upon the testimony of an in-custody informant unless it shall be corroborated by such other evidence as shall independently tend to connect the defendant with the commission of the offense . . . . Corroboration of an in-custody informant cannot be provided by the testimony of another in-custody informant.
The Lucasville prosecutions ignored the necessity for objective corroboration of informant testimony. The uncorroborated testimony of prisoner informants, so-called “snitch” testimony, was the principal basis for every Lucasville capital conviction.
One way in which Ohio seeks to guard against the perjury of snitches is by requiring the judge to give the following instruction to the jury. The testimony of an accomplice does not become inadmissible because of his complicity, moral turpitude, or self-interest, but the admitted or claimed complicity of a witness may affect his credibility and make his testimony subject to grave suspicion, and require that it be weighed with great caution.
However, common sense suggests that reading to a jury a long sentence that begins with a double negative and is made up of polysyllabic and unfamiliar words is unlikely to protect a defendant. Prosecutors have many ways to make perjured testimony appear convincing to a jury. For example, an informer may describe the scene of a crime with seeming truthfulness since, after all, often the witness was actually there and simply ascribes to others the actions he himself committed.
The Lucasville prosecutors used a variety of techniques to procure compliant prisoner informants and prepare them for trial. In Skatzes’ trial, prosecutor (now Ohio judge) Daniel Hogan admitted that Daniel Stead, who prosecuted the trial with him, had told a wavering prisoner, “you are either going to be my witness, or I’m going to come back and try to kill you.” In preparing prisoner Robert Brookover as a witness, prosecutors hit him with a rolled-up newspaper until he stopped beginning each sentence of his testimony with the words, “I’m not going to lie to you.” And by bringing potential prosecution witnesses together at the so-called “snitch academy” in Lima, Ohio, prosecutors sought to ensure that their witnesses at trial would tell consistent stories.
Ohio court opinions also emphasize, as a second shield against unreliable snitch testimony, the right of the defense to cross-examine prosecution witnesses. But this right was systematically obstructed by Lucasville prosecutors. Typically, officers of the Ohio State Highway Patrol interviewed potential prosecution witnesses as many as half a dozen times before trial. Summaries of these interviews were then entered into a computer database. But only when the witness began to provide the narrative that the prosecution desired were his remarks likely to be preserved in the form of a tape-recorded interview or deposition. This prosecution-friendly final product could then be provided to the defense in “discovery.” The database entries might have revealed how much the testimony of the witness had changed over time as it was shaped by interviewers from the state. These entries were often not produced. But in Keith LaMar’s case, prosecutors successfully impeached the testimony of defense witness Gino Washington by using interview records that had not been produced in discovery.
Defense Alternatives
Lucasville capital defendants were faced with an excruciating choice.
If they had not killed anyone during the eleven days, they had the right to go to trial and try to convince a jury of their innocence. But their juries would be made up of men and women willing to recommend the death penalty; their trials would be governed by the doctrine of complicity; and their trial court judges would have no way to assure defendants of the good faith and credibility of prosecution witnesses.
However if, recognizing that the dice were loaded, the defendant elected to plea bargain, the best possible outcome was likely to be imprisonment for life.