United States District Judge James Turk, in a strongly worded opinion, has ordered a new trial for Michael Hash, convicted in 2001 for the killing of Thelma Scroggins in Culpeper County in 1996. Judge Turk found police misconduct, prosecutorial misconduct, and no credible evidence of guilt. The Attorney General’s office has said that they will not appeal the ruling. See the Washington Post story on the case. The opinion can be found here.
To understand how unusual this is, you have to realize that Congress and the federal courts have been making it harder and harder over the last 35 years to win these sorts of appeals. This is a pretty amazing victory for Hash, the Innocence Project and the rest of his appellate team.
Before I get into my discussion of the decision, though, I have to make a disclosure — I represented Hash’s co-defendant, who was found not guilty in a jury trial in 2000. When Hash was convicted in 2001, we were amazed, because the government’s evidence against my client had not been at all persuasive. We caught Angela Shelton — one of the Commonwealth’s important witnesses — in lies; Eric Weakley, a supposed co-defendant who claimed that he committed the crime with Hash and my client, testified that he sometimes had trouble distinguishing reality from a dream; and we had evidence that our client was actually in Pennsylvania at the time of the murder. It seemed inconceivable to us that Hash could be convicted.
So what was different in Hash’s case? The biggest difference was that in Hash’s trial, a jailhouse snitch named Paul Carter testified that Hash confessed to him while they were both in jail. You have to understand the timing here. Hash had been held in jail in Culpeper. He was transferred to the Albemarle-Charlottesville Regional Jail (ACRJ) for two nights, and on the second night he was in the same cell with Carter. At the time, the official line was that Hash was being transferred as a convenience to his Charlottesville lawyers, so that they could meet with him. That was what Commonwealth’s Attorney Gary Close testified to.
During the habeas corpus proceedings, however, Sheriff Lee Hart gave an affidavit that the purpose of having Hash sent to ACRJ was “to obtain information by the informant from Hash.” Hart also stated that he was not comfortable authorizing the transfer, and he told his investigator to get Commonwealth’s Attorney Close to sign off on it. After reading Hart’s affidavit, Close filed an “Errata” sheet in which he changed his affidavit, now admitting for the first time that the purpose of the transfer was to move Hash to a jail “where there was a snitch.”
And not just any snitch — Paul Carter was an experienced snitch. He was a federal drug dealer facing a potential 180 months sentence. And Paul Carter knew how the game was played. So Culpeper sent Hash to ACRJ, ACRJ put Hash in with Carter, and a month later Carter contacted Culpeper with the news that during that one night, Hash had confessed to Carter. Of course, when pressed, Carter said that he had no agreement with the prosecution for a time reduction, and just a hope but no expectation of a time reduction. However, before the 2001 trial, Carter wrote 5 letters to U.S. District Court Judge James H. Michael, asking for a sentence reduction (he wrote 20 more letters after the trial), and Judge Michael in fact reduced Carter’s sentence to time served, or about 5 years.
Judge Turk’s opinion catalogs the various lies and deceptions by the prosecution and the investigators:
- No one disclosed Carter’s expectations regarding his testimony, and in fact the prosecution in its closing argument affirmatively misrepresented to the jury that Carter had no expectations because there was no tie between Hash’s state and Carter’s federal cases. The prosecution not only has a duty under the Due Process Clause to disclose agreements with witnesses, but it has a second duty under the Due Process Clause to not permit a government witness to lie without it being corrected.
- Hash’s transfer to ACRJ was in fact orchestrated, which is important both because it was represented to the court and to counsel that it had not been. This sort of orchestrated “let’s get him to confess to our snitch” transfer — particularly at a time when Hash is represented by counsel — can violate the Constitution.
- The prosecution did not disclose that it had made a deal with Eric Weakley (supposedly a co-defendant) for his testimony.
- Weakley has since recanted his testimony, saying that in fact he had no involvement with Ms. Scroggins’ murder, and as far as he knew, neither did Hash.
- The prosecution failed to disclose that both Weakley and Angela Shelton had failed polygraph tests.
- Carter’s letters to Judge Michael were not produced to the defense, as Supreme Court cases require
- Weakley’s testimony was coached
- The lead investigator lied at Hash’s trial when he said that Weakley’s interviews were not recorded, when they were and would have showed how Weakley’s testimony was coached
- Another investigator saw a firearm of the same general type used to kill Ms. Scroggins at the home of another suspect, but did not take the weapon and get a ballistics report
Judge Turk’s 66-page memorandum opinion catalogs these lies and deceptions at length.
It is always disturbing, though to me not terribly surprising, to learn that investigators coach witnesses, or that they arrange for snitches to elicit “confessions” from suspects. It is always disturbing, but surprising, to learn that investigators and prosecutors have lied in an effort to secure a conviction. What I find most disturbing is how powerless defense lawyers are most of the time to uncover these deceptions. Michael Hash spent 12 years in maximum-security facilities for a crime he did not commit — all because prosecution witnesses lied to the jury and to the defense lawyers, and the defense lawyers had no way to detect the lies.
I have written before about the case of Roderick McDowell, convicted in May, 2009, of William Godsey at the Wood Grill Restaurant in Albemarle County. Mr. Godsey’s wife, Sandra Godsey, immediately identified two “white … perhaps Hispanic” men as the assailants; she knew McDowell (a medium-skinned African-American), and she could not identify him as one of the assailants. There was no DNA or forensic evidence to connect McDowell to the crime — just the testimony of 6 different jailhouse snitches, each of whom gave different accounts of McDowell supposedly “confessing” to them. Based entirely on jailhouse snitch testimony — not corroborated, and not corroborate-able — McDowell is serving a 60-year sentence now.
We know from psychological studies that juries place far more confidence in jailhouse snitches than do judges or other participants in the criminal justice process. I tried to argue to the Virginia appellate courts that in recognition of this fact, the Virginia court system needed to take some responsibility for getting it right. The courts have the power to set the rules of evidence; there is no inherent reason why they cannot set a rule of evidence that requires, for example, corroboration of a jailhouse snitch’s testimony. The courts have the power to give instructions to the jury; there is no inherent reason why the courts cannot give an instruction (as is done in many courts) that the testimony of a jailhouse snitch should be considered with great care and caution. The courts have the power to serve as a “gatekeeper,” to keep out unreliable “junk science” evidence; there is no reason why the courts could not say, “We have considered the testimony of this jailhouse snitch, and we consider it to be so unreliable as to be unworthy for consideration by the jury.” I once asked a Justice of the Virginia Supreme Court — at a cocktail party, off the record — whether the Court felt any responsibility to the system to craft rules that will maximize the chance of “getting it right,” and I was told, “That’s what lawyers are for.”
I hope that the Hash case may serve as something of a wake-up call on snitch testimony. But I am not holding my breath.
