The Power To Put You On Death Row Is Strong

As a death-row exonoree myself and having studied the American justice system for many years, I feel qualified and obligated to expose the corruption and wrongs of the American justice system.

I also belong to Witness to Innocence, which is an organization of, by and for death-row exonorees. Our mission is to empower exonerated death-row survivors to be the most powerful and effective voice in the fight to end the death penalty in the United States. Through public speaking, testimony in state legislatures and media interviews, our members expose the reality that innocent people are sentenced to death in the U.S. way too often.

Most of the death-row exonorees in the U.S. are members of our organization and personal friends of mine. This gives me inside information to the cases that I write about.

This is the first part of my series for Interrogating Justice about that inside information. In these short essays, I hope to help people understand the injustices of the judicial process that put innocent people on death row.

But my ultimate point is as clear as it is important: Your constitutional rights are subject to the whims of those whom have power of you.

Prosecutorial Immunity

In the 1970s in a case called Imbler v. Pachtman, the United States Supreme Court established prosecutorial immunity. With an 8-0 decision, the Court held that prosecutors have absolute immunity from lawsuits under Section 1983 for activities that are integral parts of the judicial process. In reality, this means that prosecutors have absolute immunity for almost anything.

Altogether, 85% of all death-row exonerations in America involve prosecutorial misconduct. In these cases, prosecutors were complicit in trying to get innocent people executed by the state. This is what Albert Camus called “the most premeditated of all murders.”

These corrupt prosecutors often pay no penalty for this, and very few have ever showed any remorse. They can do basically anything they want to us, and there’s nothing we can do about it. In almost all of these cases, the prosecutors refused to admit that they did anything wrong. They don’t want to expose their incompetence or corruption to the public.

Johnny Thompson

Fast forward to 2011 when the U.S. Supreme Court was tasked with deciding wether a prosecutor’s office can be held liable for a single Brady violation based on the argument that the office provided inadequate training in a case called Connick v. Thompson. (To be fair, the case had a number of other issues that the Supreme Court could have and should have addressed but didn’t.) According to the Supreme Court, the answer is no.

Johnny Thompson, the defendant in that case, was a friend of mine. He sued his prosecutor, Harry Connick, for his 14 years on death row in the Louisiana State Penitentiary in Angola, Louisiana, for an armed robbery and murder that he did not commit. A jury awarded him $14 million after he proved that the prosecutor knew Johnny was innocent but hid the evidence. This landmark case took every penny of that $14 million away from him.

Johnny died from heart failure at 55 years old in October of 2017. I was shocked. Johnny was an incredible human being. I sat at my desk and cried.

My Friends and I

In 1974, four friends and I were convicted of murder, rape and sodomy in Albuquerque, New Mexico, and sent to death row.  We were there almost two years. I was nine days from my execution date when the real murderer, a police officer, confessed to the crimes.

The corruption of the prosecutor and the detectives in my case was so egregious that the assistant prosecutor was disbarred and three detectives were fired after our exoneration. Among the evidence hidden by the prosecutor was the culprit’s gun along with a report from the crime lab that it was indeed the murder weapon. The gun was also linked to the murdering cop.

Qualified Immunity

The United States is home to another judge-created “law” called qualified immunity. These qualified-immunity laws prevent police and many other government employees from being sued for their misdeeds.

The doctrine was created by the U.S. Supreme Court in the 1960s to protect public officials from frivolous lawsuits. But police officers have successfully used it to avoid litigation when they’re accused of using excessive force for decades.

In New Mexico, we recently defeated the state’s qualified-immunity laws. Now, government employees can be held responsible for their wrongdoings, including police beatings, false arrests and a myriad of other violations of our rights.

I gave my testimony to the New Mexico Legislature and was followed by a police chief who claimed that if the bill passed there would be millions of dollars in lawsuits against police departments.

My response? “Are you saying that you have that many bad cops who violate the rights of the very people you are sworn to protect and serve? Are you admitting, at these proceedings, that you are aware of the many bad cops and they still work for you? And you have done nothing about it? It looks, to me, that you are part of the problem.”

I was told later that I had better never drive through that police chief’s jurisdiction.

Jailhouse Snitches

In addition to powerful immunity, prosecutors also have the use of jailhouse snitches at their disposal. Prosecutors pay snitches money, as well as shorten their sentences and give them other perks, if they testify favorably for the prosecution.

On the other hand, the defense literally commits a crime if it does the exact same thing. If the accused or the defense lawyer did this, the government would call it something like witness tampering or another serious crime.

In these unbalanced scales of justice, the defense cannot offer time off of a sentence or anything else for testimony. But the prosecutor can. And if the prosecutor crosses the line from the permissible use of jailhouse snitches to improperly influencing testimony, the worst it’d be called is misconduct.

In almost all of these cases where snitches are used, the defense asks them about their arrangement with the prosecutor: “Have you been promised anything for your testimony?” The answer is almost always the same: “No.”

This answer is almost always false. Yet judges can be blind to the reality of jailhouse snitches. It is indeed an exemplar of corruption when both the judge and the prosecutor know the snitch will receive something in exchange for his testimony but allow him to get away with an incomplete answer.

In my experience, if often feels like the judges and prosecutors are working together to obtain a conviction rather than seek justice. In a football game, you will never see a referee run out and sack the quarterback. But in a court of law, it feels like it happens frequently.

Professional Snitches

The prosecution doesn’t only have one-time jailhouse snitches they use in a specific case and then turn loose. In my case, two habitual, perennial snitches testified in court that I confessed to them. I had never met them in my life. They fabricated their testimony to go along with the prosecutor’s case, which later turned out to be manufactured and all lies.

I tried to get my lawyer to ask them a number of questions when they were on the stand. But “my” lawyer refused. There was no way that the snitches were allowed on death row to talk to anyone. We were sent to death row four months before our trial. Death row is in the bowels of the prison and under high security. We are locked in single occupant cells 24/7. For two years we were not even allowed showers or exercise. Snitches, on the other hand, are housed in protective custody. They are not on death row.

This is part of the reason why snitches are the leading cause of wrongful convictions in the U.S.

Andrew Chambers

Andrew Chambers became a millionaire working as a professional informant for the government. He made $4 million his first year as a snitch in 1984. Adjusted for inflation, that comes out to almost $9.5 million today. But Chambers’ career as a government snitch came to a halt when the Department of Justice discovered that he committed perjury in at least 16 cases. So, the government fired him.

Chambers testified in at least 280 cases for the government. Is this guy so charismatic that 280 people walked up and confessed their crimes to him? How do prosecutors get away with this unchecked? How can judges allow this to happen? A track record like Chambers’ shows that judges simply don’t stand in the way of professional snitches gone wrong.

Raymond Wagner

Gary Gauger was sentenced to death in 1994 for supposedly murdering his parents on their farm in Illinois a year earlier. The primary evidence used to convict Gauger was the testimony of a jailhouse snitch, Raymond Wagner. Wagner said he heard Gauger confess to the crime.

Gauger’s conviction was reversed on appeal in 1996 when a court found there was no probable cause for his arrest. But prosecutors continued to publicly insist that he was guilty. A year later, two members of the Outlaws Motorcycle Gang were convicted of the murders of Gauger’s parents after one of them was caught on tape confessing to the crime.

In 2002, five years later, Illinois Gov. George H. Ryan pardoned Gauger based on his actual innocence. Can you imagine finding your parents murdered and then being wrongfully sent to death row for their murders? Gary once told me that he was hopeful that someday the real murderers would be found.

Robert Floyd

In Florida, Joseph “Shabaka” Green Brown was sentenced to death in 1974 for a murder Robert Floyd, a jailhouse informant, said Brown committed. Floyd testified against Brown in exchange for leniency in his own case. Years later, Floyd admitted he made it up. Brown was exonerated from death row 14 years later. 

Olan Wayne Brantly

A jury in Louisiana sent two innocent men, Albert Burrell and Michael Graham, Jr., to death row in 1987 after another jailhouse informant, Olan Wayne Brantly, lied on the stand. The prosecutor knew the snitch had lied but did nothing about it. Eventually, the prosecutor confessed, and the two men were released.

Ronald B. Keine is a founding member of Witness to Innocence. Since he was exonerated, Keine has devoted his life to advocating for the end of the death penalty and criminal justice reform. He has been a contributing author for Wrongful Conviction and Criminal Justice Reform, a textbook by Marvin Zalman and Julia Carrano that is used in law schools across the country, has participated in numerous documentaries, has testified in several states’ legislatures, has played key roles in numerous organizations advocating for reform, has spoke to countless high schools, colleges, law schools, churches and other groups and has won several awards for his work.