November 24, 2013

Sidebar: Cases raise concerns about informant testimony

Several Wisconsin cases from the The National Registry of Exonerations show how incentivized testimony can contribute to wrongful convictions. Each involves testimony from informants that was later proven false.

William Avery, who ran a crackhouse in a Milwaukee neighborhood, was convicted of reckless homicide and sentenced to 40 years in prison for the 1998 murder of a drug addict and prostitute, after three jailhouse informants alleged that he confessed to the crime. Two of the inmates later recanted their statements; one did not.

In 2010, Avery’s conviction was overturned, when DNA tests linked convicted serial killer Walter Ellis to the crime. Ellis, who is serving life in prison without the possibility of parole for the murder of seven other prostitutes, has not been charged with this murder. In December 2012, Avery was awarded the maximum $25,000 in compensation from the state Claims Board.

Beth LaBatte, a drug addict and alcoholic, was convicted of the 1991 murder of two elderly sisters in Kewaunee County, based in part of the testimony of three inmates who claimed they heard her confess. The Wisconsin Innocence Project called for DNA testing of the murder weapon. LaBatte was excluded as a contributor and was released in January 2006. She died in a single vehicle crash in Waushara County in September 2007.

Joseph Frey was convicted in 1994 for the 1991 rape of a UW-Oshkosh student in her apartment. At the time, testing excluded Frey’s DNA from items taken from the crime scene. But Frey — who was facing charges in two other sexual assault cases — was fingered by a jailhouse informant, who claimed Frey confessed to the sexual assault. Frey’s conviction was overturned and the charges dropped in July after additional DNA testing requested by the Innocence Project found a match with a now-deceased sex offender.

Evan Zimmerman, convicted of the 2000 murder of his former girlfriend, won a retrial with the help of the Innocence Project. Zimmerman was released on bond pending a retrial in 2004. Eau Claire County District Attorney Rich White, who would retry the case, planned to present three inmates to testify that Zimmerman confessed.

University of Wisconsin-Madison law students involved with the Innocence Project obtained recorded jail phone calls of another informant discussing his plans to set Zimmerman up.

Charges against Zimmerman were dropped in the middle of his 2005 retrial. He died of cancer in 2007.

Innocence Project staff attorney Byron Lichstein says Zimmerman’s case illustrates three important aspects of criminal informant testimony: Informants can completely fabricate a story that could help them get time off their sentences; prosecutors may be unaware that they are lying; and defense attorneys with sufficient resources can discredit jailhouse informant testimony.