After being held in jail for several days in 1995, Sammy Hadaway endured three rounds of interrogations before confessing that he saw Chaunte Ott, his friend, rape and murder Jessica Payne, a 16-year-old runaway. Hadaway who has cerebral palsy, epilepsy, and brain damage, confessed that he robbed Payne before his friend raped and killed her.  The problem is that Hadaway says the confession was a lie created because Hadaway was afraid the police would charge him with homicide.

“I was like, ‘Okay, he did it’ and I repeated the story (police) told me,” Hadaway, now 38, said in an interview.

Ott was convicted in 1996 by a Wisconsin jury of first-degree murder based mostly on the testimony of Hadaway and another informant who avoided prosecution. He was sentenced to life in prison. As part of the plea deal, Hadaway received five years in prison for robbery.

“This case was essentially a case where it appeared to be going nowhere and the detectives in this case built this case out of absolutely nothing,” Mark Williams, a Milwaukee County assistant district attorney, said at trial, “They deserve the credit of the community…”

The entire case was built on incentivized testimony where informants are offered something in order for them to “cooperate” with police, such individuals are often referred to as “snitches” and are seen by criminal justice experts as the weakest link in the entire system and one of the sources of wrongful convictions.  Wisconsin itself has no policies regulating informant testimony.

“A state that has no protections against witnesses who are compensated for their testimony is inviting wrongful convictions,” says Alexandra Natapoff, a professor at Loyola Law School in Los Angeles and author of an award-winning book on the dangers of criminal informant testimony.

Natapoff says that there are at least 10 states that have attempted to take steps to regulating informant testimony or requiring that a person cannot be convicted based upon the testimony of an “accomplice” if there is no other corroborative evidence.  The alternative, Natapoff says, is that police and prosecutors will vilify more innocent people,

“We are beyond the day when we can close our eyes to the injustices and wrongful convictions…”

Four years after Ott’s conviction, the Wisconsin Innocence Project began working on his case. The Innocence Project branch, located at the University of Wisconsin Law School investigates wrongful convictions.  They called for DNA testing on biological evidence found on Payne that was never tested before. The DNA results excluded Ott and Hadaway and instead matched Walter Ellis, a convicted serial killer (Milwaukee North Side Strangler) who killed at least seven women between 1986 and 2007.

Ellis, who is imprisoned for life, has not been charged in Payne’s murder. Two of Ellis’ victims lived in the same neighborhood where Payne was found.  Ott was released in 2009 after serving 12 years for a crime he didn’t commit. He received the maximum compensation for wrongfully convicted people in Wisconsin, $25,000 in 2010.

Hadaway’s conviction still stands. Natapoff says that the case of Hadaway and Ott illuminate several issues with incentivized testimony: “It includes a lying snitch, law enforcement that didn’t test DNA evidence and a false confession by a psychologically vulnerable individual. It sums it all up in one terrible bundle.”

According to a 2005 study done by the Center on Wrongful Convictions, using informants in criminal cases is as old as the “Pilgrims”.  The nation’s first documented wrongful conviction involved an informant.  In 1819, Jesse and Stephen Boorn were sentenced to death after a jailhouse informant claimed that Jesse confessed to the murder of his brother-in-law.  The informant was given freedom in exchange for his testimony.  The Boorns were spared execution when the brother-in-law was found alive in New Jersey.

“Perjury or false accusations” were a factor in 17 out of 31 exonerations in Wisconsin since 1989, according to The National Registry of Exonerations.  Natapoff says that criminal informants, who are compensated, are used in every stage of an investigation and can be used in any criminal case, “It’s really become a staple of how American law enforcement handles cases.”  Criminal informants can be accomplices or witnesses, and even “agents of the state”, wearing wires to record conversations,

“We’ve seen that using these criminal informants is the single largest source of error in U.S. capital cases,” Natapoff says. “There are a lot of people sitting on death row who were convicted based on snitch testimony.”

The Center on Wrongful Convictions says incentivized witnesses were a factor in 45 percent of wrongful convictions in death penalty cases nationwide between 1973 and 2005.  The Department of Justice does not track how often criminal informants are used nor how much impact their testimony has on verdicts. “Nobody really knows the extent of the problem because the government doesn’t keep track, and we don’t require them to,” said Natapoff.  “Snitching is one of the most secretive aspects of the criminal justice system,” she says.

Rick Coad, a criminal defense attorney in Wisconsin says that informants are often people desperate enough to lie, “You have these people that would do anything to save their own hide. You can understand why they would provide false information.” Coad says that criminal informants are the “pillar” of most drug cases and even are used to determine the weight of the drugs that were allegedly sold, which helps determine a convicted defendant’s sentence.

“Good luck disproving these statements,” he says, “When you have these statements from somebody that knows about the case, but they’re not supported by evidence, it’s very difficult to disprove the testimony. It’s proving a negative.”

Lt. Brian Ackeret of the Madison Police Department responds to critics by saying the incentivized system does more harm than good, “Do we need to recognize that there are potential problems with confidential informant testimony? Yes, but I’d say overall the system is doing more good than it is harm.”  In Hadaway’s case, his attorneys say that his intellectual disabilities, the psychological pressure of interrogation, and his vulnerability all call into question the validity of his confession.  Hadaway was not evaluated by a psychologist before testifying against Ott, but in 2009, his medical records tell a long story about his limitations.  He has cerebral palsy and has suffered seizures since birth.  He doesn’t always remember to take his medication; he loses consciousness from time to time for several minutes, and often gets confused.

Dr. Robert Galatzer-Levy, a clinical professor of psychiatry and behavioral neurosciences at the University of Chicago, says that even for a person of average intelligence it can be extremely difficult to withstand police pressure.  Interrogators use the first 10 minutes of an interview to determine whether or not they think the person is guilty.  If police assume guilt, they use carefully designed interrogation techniques to confuse and disarm a suspect and then convince them it is in their best interest to confess.

“Imagine yourself terrified, with two police officers, very forcefully asking questions. Telling you that they know that you’re guilty. Also being told that there’s very little time,” Galatzer-Levy says, “Now imagine that if you’re not all that bright or quick — these same techniques become incredibly powerful…”

In Brandon Garrett’s book, “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” he studied the first 250 people exonerated by DNA tests. Garrett, a law professor at the University of Virginia, says juveniles and individuals who have cognitive impairments are especially vulnerable to false confessions.  In the cases he examined, 17 exonerees who falsely confessed had mentally disabilities or mental illnesses, and 13 were juveniles, “All of those individuals would have been more suggestible…” He added that all but two of the 40 false confessions were reported to have included “inside information,” or details that only the true culprit could have known.  The false confessions were so seemingly persuasive and detailed that judges repeatedly upheld them during appeals for several years.

Garrett’s findings show that in some ways innocent people are more likely to confess or implicate themselves negatively through cooperation, “There is an assumption that they can clear it all up later. They trust the system. They think, ‘I’ll get a lawyer, and we’ll clear this all up.’ “

More than 20 percent of the DNA exonerees had informants in their cases.  These informants and prosecutors deny at trial that they were incentivized, but the information often emerges years later.  In some cases, multiple innocent defendants implicated each other, including the Ford Heights Four and it is believed the Norfolk Four.  The Ford Heights Four led to the new procedure of “pretrial reliability hearings” in Illinois, which are formal hearings used in Illinois capital cases to determine the credibility of an informant versus the incentives given for their testimony.

Hadaway’s attorneys recognize that reversing a conviction is unbelievably difficult.  The odds are against Hadaway, despite a known violent man’s DNA being found on the victim instead of his, that his conviction may haunt him forever.  The standard of proof needed to reverse a conviction is much higher than what was needed to secure the original conviction, Garrett says, and in most cases, judges are very skeptical about new evidence.  Hadaway has not spoken to Ott since his conviction, but said he was happy that his former friend got exonerated.

If he could speak to Ott, there’s only one thing to say, “I’d tell him I’m sorry,” Hadaway said tearfully.

Hadaway says he regrets his testimony against his former friend, but understands why people tell the authorities what they want to hear, “To be free…there’s a lot of people in jail for something they didn’t do but somebody else said they did.”

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