Texas Lawmakers Push for Pretrial Vetting of Jailhouse Informants

The Texas House passed a bill Tuesday to establish a process of weeding out unscrupulous jailhouse informants that would emulate how courts vet expert witnesses.

(Image by Jody Davis from Pixabay via Courthouse News)

AUSTIN, Texas (CN) — More than a dozen Texans have been convicted based on the false testimony of jailhouse informants. Agreeing on the need for a safeguard against perjured testimony of opportunistic prisoners, the Texas House passed a bill Tuesday that will task judges with vetting their credibility in pretrial hearings.

John Nolley thought there was no way a jury would convict after him Tarrant County prosecutors charged him for the murder of his friend Sharon McLane, who was found with multiple stab wounds in her apartment in the Fort Worth suburb Bedford. 

Though police started investigating Nolley, a tall Black man, after cellphone records showed he had been in contact with McLane in the days before she was killed, Nolley was at work when McLane’s neighbors heard a woman’s blood-curdling screams the afternoon of Dec. 12, 1996.

Several neighbors reported they had seen a tall white man in a black cowboy hat walking outside McLane’s apartment shortly after they heard the screams.

The only evidence linking Nolley to the scene were his fingerprints found on two beer bottles in McLane’s trash can. He had told police about the bottles, admitting he had visited McLane the night before she was killed.

But the prosecution had a wild card. An inmate with a long rap sheet named John O’Brien, who testified that Nolley had confessed to him in the jail law library.

The jury bought O’Brien’s story and convicted Nolley.

Sentenced to life in prison, Nolley served 19 years before the conviction integrity unit of a newly elected district attorney, working with Nolley’s attorneys from the Innocence Project, discovered documents revealing O’Brien had lied to the jury when he testified he had never snitched on anyone but Nolley, resulting in Nolley’s release on bond in 2016.

Now exonerated, with his murder indictment dismissed, Nolley does not want anyone else to suffer what he went through.

“I guess the crazy thing would be the way it makes a person feel,” Nolley testified at a recent hearing of the Texas House Criminal Jurisprudence Committee. “Like for myself I was 23-years-old at the time. And I have somebody come up that I have never even noticed. And I mean the anger and the helplessness you feel. It’s kind of like being legally kidnapped if that makes sense.”

Nolley told the committee O’Brien had been facing a minimum 25-year sentence for stealing $75,000 worth of farm equipment. But thanks to the deal he made with prosecutors he was sentenced to probation.

O’Brien would have likely never made it to the witness stand under House Bill 2631, which 143 of the 150 members of the Texas House approved Tuesday.

The bill establishes — for any case in which the defendant was facing felony charges of murder, capital murder, kidnapping, sexual assault, aggravated assault and a handful of other serious charges — a new process to weed out unscrupulous jailhouse informants that bears a close resemblance to how courts vet expert witnesses.

The prosecution would have to inform defense counsel 21 days before trial of their plans to offer the testimony, and the judge would hold a pretrial hearing considering the informant’s credibility — their criminal history, if they had at any time changed their statement about what they claim the defendant had told them and any instances of them testifying against other people doing time in the same correctional facilities as them.

The judge would also have to examine any benefit the state offered the informant, such as a sentence reduction or immunity from prosecution.

Only if the judge found the informant was rational and credible and the value of their testimony outweighed the danger of misleading the jury would they be allowed to take the stand.

The bill was written by three Republicans and two Democrats, including Senfronia Thompson of Houston, an 82-year-old Black woman who has served in the Texas Legislature since 1972, through 25 elections, which is longer than any other woman in its history.

The lawmakers threw in one more safeguard to protect against wrongful convictions.

“H.B. 2631 requires the court … to instruct the jury to disregard the informant’s testimony unless the jury determines that any benefit granted, promised, or offered to the informant did not unduly influence the testimony and that the testimony is truthful,” the Texas House’s final draft of the bill states.

It will now be taken up by the Texas Senate, which after considering changes to the language is also expected to approve it for ratification by Texas Governor Greg Abbott, a Republican.

The Texas District and County Attorneys Association, the Texas Indigent Defense Commission and the Texas Criminal Defense Lawyers Association did not immediately respond to requests for comment on the bill Tuesday.

Mike Ware, executive director of the Texas Innocence Project, weighed in on it at a March 29 hearing of the Texas House Criminal Jurisprudence Committee.

He said prosecutors only use the testimony of jailhouse informants when their other evidence is so weak they believe that without it there’s no way they could get a conviction.

Without the safeguards proposed in HB 2631, Ware believes more innocent people will be victimized by untruthful prisoner testimony.

“It makes logical sense that since [jailhouse informants] are only used where the evidence against the defendant is otherwise very weak that inevitably it is going to be used by prosecutors against defendants who are actually innocent,” Ware testified in the committee hearing.

At least 13 Texans have been wrongfully convicted behind bogus testimony of jailhouse informants, according to the bill’s main author Matt Krause, a Fort Worth Republican, constitutional attorney and adjunct criminal justice professor at Liberty University.

If passed, the bill will take effect Sept. 1.

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