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Ah, our old friend: unreliable jailhouse informant testimony. When the state’s case is based on weak evidence, when prosecutors are under added pressure to convict for, say, the murder of a cop, here it comes. Prosecutors just keep on using it. Maybe they do so because they know that even when DA offices are judicially admonished for using this unreliable testimony in ways that flagrantly violate existing informant-use laws (I see you, OC), they know that nothing really happens. Sure, cases can collapse, maybe. But in the end, powerful leaders like former AG Kamala Harris will back their offices and professional discipline is vanishingly rare.

Here at the Open File, we have long recognized that a “new laws” approach to reducing prosecutorial misconduct is exciting and great (hence our name!) – but we also recognize that when existing laws are commonly flouted (Hi, Brady), we have to ask what comes first? The enforcement chicken or the new bill egg?

But we digress. Late last year, Illinois passed a new law requiring a hearing on the reliability of potential jailhouse informant testimony. The National Registry of Exonerations reveals jailhouse informant testimony played a role in 19 cases where an Illinois defendant was wrongfully convicted and later exonerated. Last week, according to the Chicago Tribune, the first hearing under IL’s new jailhouse informant law was held. 

Unfortunately, after two days of the historic public hearing, Judge Stanley Sacks issued a gag order, sealed the entire court file, and announced his decisions on remaining pre-trial motions would be under seal. So, while Judge Sacks is expected to rule today on the admissibility of the state’s jailhouse informant testimony, the public won’t see that opinion, since it is being “made available only to lawyers in the case.” Not enough sunlight to disinfect, people.

Presumably, when Anton Carter’s actual trial starts on Monday, February 11, it will become clear whether the state will be allowed to use the informant witnesses, revealing something about what Judge Sacks ruled. It would have been nice, though, for the public to have access to the the opinion.

The case has many elements we’ve all seen before in cases that rely on jailhouse informant testimony, including recantation. Horrifically, an off-duty Chicago copy was murdered in his own driveway in 2010. That year, five Chicago police officers were tragically killed, and Cook County prosecutors have secured convictions against four other defendants. There is little physical evidence against Carter, and the state would like to put on five jailhouse informant witnesses at trial. (Yes, FIVE. That’s a lot.) In this week’s hearing on the reliability of those informants, the three potential who are still incarcerated took the stand.

While two of the jailhouse informants stand by their statements, a third man disclosed that his inculpatory testimony was false and that “detectives offered him a substantial amount of money to cooperate against Carter.”

So, we’ll see. Will the recanting witness ruin the credibility of the State and its clown car of other informant witnesses? Will the Judge’s sealed opinion acknowledge the inherent unreliability of all jailhouse informant witnesses due to the countless incentives that can be explicitly or implicitly held over them by the state? It’s an important test of the new law, and we’ll be watching the case in days to come.

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