No Honor Among Thieves

No Honor Among ThievesAuthor(s): MARK CURRIDENSource: ABA Journal, Vol. 75, No. 6 (JUNE 1989), pp. 52-56Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20760531 .

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ETHICS

BY MARK CURRIDEN

For 21 years James Richardson sat in a Florida jail thinking. He had

many questions, but few an swers. What he did know was that the criminal justice system had failed and had done so at his expense.

Richardson, now 52, was con victed in 1967 of one of the South's most ghastly crimes?murdering his seven children by placing a deadly poison in their food. Putting the sparse circumstantial evidence in his case aside, Richardson was convicted by the testimony of three convicts who were jail-house informants.

But, in a strange turn of events, another person has reportedly con fessed to the murder and the only in formant still alive now says he lied. On April 25, Circuit Judge Clifton Kelly in Arcadia, Fla., ruled that Richardson did not receive a fair trial and overturned his murder convic tion. Kelly said prosecutors in the 1967 trial withheld evidence and knowingly used false testimony. The state did not plan to retry him.

The Richardson case is one of many where the veracity of jail-house informants has been called into ques tion in recent months. These inform ants offer evidence against their fellow inmates in exchange for a re duced sentence. But recent develop ments have shown that some manipulate the system, reaping their own reward while thwarting justice.

For Richardson and the town of Arcadia, Fla., the nightmare began Oct. 25,1967. James and his wife, An nie Mae, left home that morning for their jobs as fruit pickers. Mrs. Rich ardson told Betsy Reese, the next-door neighbor and part-time baby sitter, to serve a lunch of rice and beans for the children, ages 2 to 8.

The children who returned to school after lunch began getting sick, one by one. They were foaming at the mouth, crying and shaking pro fusely. Teachers at Arcadia's Smith Brown School rushed the youngsters to a nearby hospital.

But their attempts were in vain. Within the next two hours, six of the seven children died. The seventh would hold on another day before her little body gave up the fight.

Mark Curriden is a reporter in Chattanooga, Tenn.

No Honor

Among Thieves

ABAJ/ROGER SIMMS

James Richardson: Three snitches doomed him; the last alive says he lied.

52 ABA JOURNAL / JUNE 1989



James and Annie Mae Richard son were rushed to the emergency room. Upon arriving, they were ush ered into the hospital's chapel where a chaplain prayed with the couple. Moments later, a doctor, escorted by DeSoto County Sheriff Frank Cline, entered the chapel. "I'm sorry. Your children are dead," announced Dr. Elmer Schmierer.

Annie Mae immediately fainted. James remained quiet and helped his wife. Some say he never did shed a tear.

Sheriff Cline, who was up for re election, and Judge Gordon Hayes, who was also acting coroner, had been to the Richardsons' home and discovered the deaths were caused by the poison parathion in the chil dren's lunch. Cline began question ing Richardson.

What about insurance? Do you have any insurance to pay for the medical or funeral costs?

Richardson reached into his pocket and pulled out a business card with the name of an insurance agent on one side and the names and ages of his seven children on the other. After handing the card to Cline, Richardson said the insurance agent had visited his home just two days earlier and talked to him about buy ing insurance on his children. The card read, "$500 for each child, $1,000 for Mrs. Richardson and $2,000 for Mr. Richardson."

"Could the children have been killed for the insurance money?" the sheriff asked himself.

The combination of the insur ance card and Richardson's calm, unemotional demeanor led Cline to make James Richardson his one and

only suspect. Arcadia Police Chief Richard

Barnard had other ideas. He was sus

picious of the baby sitter. Under questioning, Betsy Reese told the chief that she had not been in the Richardsons' house at all that day. She also denied fixing lunch for the children. Barnard knew Reese was

lying about the first part because he had seen her in the house when he first arrived at the Richardsons' home.

Reese's past also should have raised some eyebrows. She served four years in prison after a 1956 con viction in Lake Placid, Fla., for shoot ing and killing her second husband,

Eddie Reese. Her first husband, L.C. Cade, 26, dropped dead after eating his wife's beef stew, but Reese was never charged in his death.

Barnard tried to impress upon Cline his suspicions about the baby sitter, but Cline and Hayes made it clear this was their investigation and Richardson was their suspect. Cline went so far as to get the Florida gov ernor's office to order Barnard to leave the case to Cline.

The day of the killings, police searched the Richardsons' apartment and surrounding buildings five times without turning up another clue. But the next day, just hours after Cline had searched a nearby shed, some thing amazing occurred?Reese and Charlie Smith, a local wino, found a

bag of parathion. A neighbor saw the pair fighting over the bag and called police. Both Reese and Smith told Cline they had found the bag inside the shed.

The sheriff had found the mur der weapon. Cline took the parathion to the grand jury, along with the in surance card and witnesses describ ing James Richardson's attitude since the tragedy began. The grand jury re turned a first-degree murder indict

ment naming Richardson. Under public pressure to act

swiftly, Cline immediately arrested Richardson. But the state's attorney, Frank Schaud, reviewed the facts and told Cline there wasn't enough evi dence to take the case to trial.

Miraculously, three of Rich ardson's cell mates came for ward in the next week, ready

to testify that Richardson, in a mo ment of grief, had confessed to put ting the poison in the food. The fruit picker denied making a confession.

The first jail-house informant to come forward was James Dean Cun ningham. In return for his "truthful testimony," he would have some time knocked off his sentence. Court doc uments show that Cunningham had a problem from the start getting his story straight.

When first asked who Richard son said poisoned the food, Cun ningham replied, "The mother-in law. No?the baby sitter. The lady

who takes care of his kids." By the time the trial rolled

around, Cunningham's statement had come full-circle. He testified that Richardson claimed to have poisoned the food.

James "Spot" Weaver, a gam

bler, was the second informant to squeal on Richardson. His jail sen tence also was reduced as a reward. In his first interview with Cline and an assistant state's attorney, Weaver said Richardson admitted to poison ing his children in a moment of jeal ously over his wife's affair with Reese. "He said he put the poison in the food during the night while his wife stayed with Betsy," Weaver said.

No one ever corroborated Weav er's tale of lesbianism. When Weaver

Elliis Rubin: Fighting "an overzealous

prosecutor" and a stubborn sheriff.

ABAJ/JOSE FERNANDEZ

ABA JOURNAL / JUNE 1989 83



testified at the trial, he was asked, "Did [Richardson] ever say why he killed them?"

"No. No, he didn't," Weaver re

sponded. The prosecution did not press him further, and the defense was not given copies of any of the previous statements.

The third jail-house informant was shot to death before Richardson went to trial. But his testimony was read to the jury.

After deliberating for less than two hours, the jury found Richard son guilty of first-degree murder and sentenced him to die in the Florida electric chair. For four years Rich ardson was on death row. He even went through a trial run of his own execution, having his head shaved and actually sitting in the chair. In 1972, after the U.S. Supreme Court ruled the death penalty as then ap plied was unconstitutional, Richard son's sentence was commuted to life in prison and eventually reduced to 25 years in prison.

Since 1967, Richardson has not received one demerit in the Florida prison system. He earned his high school degree and became a minister of the gospel.

Then late last year, Richardson was told the news he had awaited for 21 years. Weaver, the informant, now 67, recanted his testimony against Richardson. "I didn't hear Richard son say anything while I was in there," Weaver told the Miami Her ald. He has given a sworn affidavit to investigators of the Florida De partment of Law Enforcement that he lied 20 years ago when he told a jury that Richardson had confessed.

Weaver told authorities he was beaten by police until he agreed to testify against Richardson. "I ain't never heard the boy say anything about it. I hope Richardson gets out. I want him to get out," Weaver told investigators.

The other informant, James Cunningham, was shot to death by an unknown assailant in 1979.

Weaver's recantation is not the only new information on the case.

Betsy Reese, the baby sitter, allegedly confessed to putting the poison in the food. While Reese is considered men tally incompetent now, Richardson's new attorney, Ellis Rubin, has sworn statements from two nurses who care for Reese at a nursing home saying

that Reese has confessed "more than 100 times that she killed the chil dren." One of the two nurses, Belinda Romeo, says there is no doubt in her mind that Reese was competent when she confessed.

Chief Barnard, now 20 years later, remains confident that Rich ardson is innocent: "Frank Cline framed James Richardson for a crime he did not commit. Cline shot his mouth off to the press and when he found he didn't have a case against Richardson, he went and manufac tured one."

Barnard, now a Florida proba tion officer, says Cline placed three inmates in Richardson's jail cell who

would have "done or said anything Frank Cline asked them to do, in cluding making false statements un der oath."

Cline could not be reached for comment, but he denied to the Miami

Herald that he coerced the inform ants to falsify testimony or that he withheld evidence that could have cleared Richardson. "I still to this day believe, I have no doubt, that James

Richardson killed those children," Cline told the newspaper.

But Dade County State's Attor ney Janet Reno, the specially ap pointed investigator, has determined that the state "knowingly used per jured testimony and suppressed evi dence helpful to the defense."

"For these reasons, the Richard son trial was fatally flawed," Rubin says. "The sheriff and prosecutor gave the Richardsons a polygraph test, but they didn't polygraph the jail-house informants. What kind of justice were they looking for? In this case we had an overzealous prosecutor along with a sheriff who had announced the guilt of the accused the day after the deaths and then went out and tried to prove it. The prosecutor was then stuck with it and ignored the obvious evidence."

The Richardson case is not unique, but it is a prosecutor's worst nightmare when dealing

with informants and co-defendants turned snitch. Prosecutions of Charles Manson, the Hillside Strangler and

ABAJ/GLENN OAKLEY

Judge Stephen Trott: A question of when and where to use informants.




Wall Street insider trading were all made possible by the use of inform ants. Why are police and prosecutors placing so much faith in tipsters?

"I tell prosecutors, 'Don't use these kinds of witnesses unless you absolutely have to,'

" says Stephen

Trott, a judge on the U.S. 9th Circuit Court of Appeals and former assist ant attorney general for the Criminal Division.

Yet he believes the criminal-jus tice system would collapse without the use of informants. Often, he says, the only witness to the crime is the criminal. The system tolerates in formants because they are necessary.

"The FBI will tell you that if you don't have informants, you're out of luck when it comes to investigating heavy-duty crime. Out of luck!" says Trott. "So you've got to balance this

thing. It's not a question of not using them, it's a question of when and

where."

"Informers are very important,"

says Harvard Law Professor Alan Dershowitz. "They give you leads and tips. They tell you where the guns are buried. That's all fine. It's when the informant's word, his credibility, is used in court?that's the problem."

The most well-publicized contro versy surrounding informants is in Los Angeles. There, a county-jail in mate named Leslie White showed au thorities how he could gather enough information to concoct a confession that would be used against a suspect.

White has been arrested more than 30 times since he was 9 years old. In many of these cases, he was released from jail early by making a deal with prosecutors. He now claims that he made up testimony, but he refuses to identify the cases. White claims that defense attorneys, prose cutors, even judges have known that he was lying, but did nothing.

"I've had judges sit up on the bench and look at me like, you know, you lying piece of you-know-what," White told CBS' "60 Minutes." "But what can they do? They can do noth

ing. If I say one thing, it's believed unless they can prove differently. The defense can't do anything. The de fense lawyer will say, 'You're lying, aren't you?' I say, 'No, sir.'

"They have no other avenue to disprove my veracity other than the fact they're just trying to verbally at tack me on the witness stand.

'These guys are

just sitting in jail looking

for ways to get out and they know

the best way out is to

put somebody else in/

"There's no way to prove I'm

lying, because I say, 'Hey, the guy told me he killed somebody, and he used a .38, and he shot him three times.' That's information known only to the authorities,"

White showed California police officers how he could get vital infor mation from the phone booth inside the county jail He called the deputy district attorney and identified him self as a detective with the Los An

geles Police Department's homicide unit. Then he asked some questions and received information that could be known only to the criminal and authorities. "All you need is a tele

phone and 20 cents for Ma Bell," White said.

He told "60 Minutes" that he knows of two people who are serving time for murder because of his falsi fied testimony who were actually in nocent of the charges. He says there may be more.

The Los Angeles County District Attorney's office, because of White's disclosures, has begun to review more than 200 murder cases in Southern California in which informants were used. Sixteen people convicted in those cases are on Death Row.

The DA also has made two

changes in procedure, says Curt Liv esay, the chief assistant district attor ney for Los Angeles County. The director of criminal law must give his

approval before an informant can be used at trial And, corroborating evi dence is required.

Livesay says his office checks an

informant's testimony as thoroughly as possible. "Before we use an in formant, we ask, 'How is it that the informant could have learned this in formation without actually talking to the person he says he talked to? Was the informant ever housed in the county jail with the defendant? Was he ever transported on a bus with the defendant? Is it possible the inform ant could have gotten police reports and got the information from that? Is there any other way he could have gotten that information?' We look for all these red flags," Livesay said.

Even though White's career as an informant is over, he has found a new niche. White has become an expert witness on the trustworthiness of in formants for defense lawyers. He gets paid $250 for each day he's on the stand.

Leslie Abramson, president of the California Attorneys for Crimi nal Justice, says these cases rep

resent "an unholy alliance between con-artist convicts who want to get out of their own cases, law enforce ment who's running a training ground for snitches over at the county jail, and the prosecutors who are tak ing what appears to be the easy route, rather than really putting their cases

together with solid evidence." "Informants' testimony is al

ways extremely suspect," says Mary Broderick, an attorney with the Na tional Legal Aid and Defender Asso ciation. "People in custody are always looking for ways to get out. There are some prosecutors so eager to get a

prosecution that they will ignore un mistakable signs of deception."

Broderick points to the Florida case of Joseph Green Brown, where the false testimony of an informant nearly led to an execution. In 1973, Brown turned himself in to police fol lowing a robbery he and his friends had committed. Brown gave police the names and addresses of the oth ers involved. When one of Brown's companions found out what Brown had done, he told police that he had seen Brown sexually assault and

murder Earlene Barksdale, the wife of a prominent Tampa lawyer.

Brown previously was not a sus pect in the Barksdale murder, but after his friend's disclosure, Brown was arrested, convicted and sen tenced to die for Barksdale's murder.

ABA JOURNAL / JUNE 1989 55



He was 17 hours away from the elec tric chair when his attorney won a court order staying the execution. The lawyer videotaped the inform ant as he recanted his statement and said he lied about Brown's involve ment. The U.S. Circuit Court of Ap peals for the 11th Circuit said that the prosecution "knowingly allowed false material to be introduced at the trial, failed to step forward and make the falsity known, and knowingly ex

ploited the false testimony in its clos ing arguments."

"I used to tell people long before Leslie White popped up that this was

going on," Trott said. "These guys are just sitting in jail looking for ways to get out and they know the best way out is to put somebody else in. They will make up stuff. They will steal files from each other's cells to get facts to impress the cops that they've got the inside information. It's been going on for a long time. Cars crash and people die, but is that a reason to do away with cars?

"I tell prosecutors that history shows two things: It shows that fre quently these people will tell the truth under oath, but I also tell them that on occasion, they will lie and

manufacture evidence just to make a deal. I also tell them that these wit nesses are essentially useless, abso lutely useless, unless their testimony is fully and completely corrobo rated," Trott said.

Dershowitz says the Racketeer Influenced and Corrupt Organiza tions law almost forces cooperation: "RICO is such an atomic bomb that people threatened with the RICO statute have no choice but to coop erate. I've seen it in my*own clients. I have had clients come and say to

me, foolishly of course,4What does the government want me to say? Just write out the script; I'll say it. Who's the government interested in? I'll tell them.' Once people become coopera tors, they become cooperators with a vengeance. I've seen my clients try to make up stories.

"At every stage of the criminal justice system deals are struck. The word on the street is, you can buy anything. You can deal for anything. The first rule of criminal justice in America is 'Always commit a crime with someone more important than you are so you can turn him in and he can't turn you in,'

" he said.

ABAJ/WIDE WORLD

Alan Dershowitz: "The word of a

bought witness is simply worthless."

Dershowitz thinks it would be useful for the American Law Insti tute or the American Bar Association to consider the subject. He believes it's unfair for the ABA Model Rules of Professional Conduct to prevent defense lawyers from giving induce ments to witnesses without applying the same rule to prosecutors.

"There's a real inequity here," Dershowitz said. "If any defense law yer ever dared to do what a prose cutor did, offered an inducement to a witness to testify for his client, he'd be in jail.

"Of course, prosecutors can pay the biggest commodity of all?life. They can tell a guy if he cooperates, he gets life in prison. If he doesn't co operate, he goes to the electric chair. So we're talking about enormous in ducements toward shaping and shad ing testimony in the way that he who pays the piper calls the tune. The bot tom line is the word of a bought wit ness is simply worthless," Dershowitz said.

Trott calls Dershowitz's sug gested change "preposterous." "You mean to tell me that somebody's ar guing that burglars ought to be able to give immunity to people?" he says. "Where's the check on that? If you

were a burglar, you'd immunize all your buddies and pals and bring them in to testify for you.

"The greatest guarantee of truth and honesty is the jury," he contin ued. "You've got 12 people sitting

there eyeballing this guy. They are

listening to his story and to the cross examination. This guy's character is attacked vigorously by the defense attorney.... We've chosen that way in our society to test the credibility of a witness."

"But do you remember the ar gument that's always made by the prosecutor in his closing argument?" asks Dershowitz. "

'Ladies and gentlemen of the jury, the defense has told you this co defendant that testified against him is a sleaze bag and a crook. He is. I didn't pick him. He's not my friend. He's the defendant's friend. When you go to prosecute the devil in hell, you wouldn't call angels 21s wit nesses. They are bad people. But even the worst people tell the truth some times and they tell the truth when they've become redeemed and this informant has been redeemed. He's now on our side.' You hear that ar gument all the time. It's very effec tive.

"I would say I have had 10 clients over the past few years who were sent to jail exclusively on the basis of bought testimony," Dershowitz said. "The problem is nobody seems to

want the truth any more. Everybody wants testimony in their favor."

San Francisco State University Sociology Professor John Irwin has been studying informants and their role in the criminal-justice system. He points to techniques now used by law enforcement to "encourage" crimi

nals to snitch. "There are positive in ducements and negative. They can offer protective custody, reduced jail time and things like that. But they also tell the potential informant, 'If you don't give us information, then we'll put the word out that you're a squealer,'" he said.

Irwin says just as the 1980s have been a period of individualism and selfishness for many Americans, the country's criminal element was not passed over.

"There used to be a considerable amount of pressure not to inform," he says. "The stigma of being an in former was very damaging and even life-threatening. But over the years, that has slowly diminished.

"There are new ethics like 'It's a

dog-eat-dog world' and 'Every person for himself.' Basically, there is no

longer honor among thieves."




Documents

No Honor Among Thieves