COMMENTARY: Protect Nevadans by regulating unreliable jailhouse informants

DeMarlo Berry spent more than 23 years behind bars for a 1994 Las Vegas murder he did not commit. No physical evidence linked Berry to the crime and most of the eyewitnesses could not identify him in a photo lineup. He was sentenced to life in prison based on the false testimony of a jailhouse informant, who claimed Berry confessed to the murder when the two were jailed together in Clark County.

The informant, Richard Iden, received remarkable benefits in exchange for his testimony, including leniency on his own multiple criminal charges and free room, board and financial compensation while preparing for the trial. He was also provided money to travel to and from Ohio several times to visit his ailing father. None of these incentives was ever disclosed to DeMarlo’s defense counsel. And because there was so little evidence against DeMarlo, the informant’s testimony played a pivotal role in putting an innocent man behind bars for more than two decades.

It wasn’t until 2011, when the real perpetrator confessed to the crime, that the informant admitted his testimony was a lie and that he was fed details of the case by two detectives and the prosecution’s investigator. He went even further, saying that he had never even spoken to DeMarlo and that the first time he had laid eyes on him was in the courtroom. DeMarlo was finally exonerated in 2017, at age 42. He was just 19 years old when he was unjustly incarcerated.

DeMarlo’s case illustrates the problems with jailhouse informants. They have a strong incentive to lie in exchange for benefits such as plea bargains, reduced sentences or financial compensation. But because such benefits often remain secret or are otherwise not disclosed to the defense, jailhouse informants play an outsized role in the conviction of innocent people.

According to the National Registry of Exonerations, 223 innocent Americans have been found to have been wrongfully convicted due to unreliable jailhouse informant testimony since 1989.

This is unacceptable. That’s why the Assembly has unanimously passed legislation AB101, which will safeguard against unreliable jailhouse testimony. The bill would require district attorneys offices to track informant testimony and any benefits they received so prosecutors can properly vet them before they see the inside of a courtroom. It would also require the timely disclosure of evidence relating to the informant’s reliability to ensure the state meets its constitutional disclosure obligations to the defense.

If adopted, Nevada would join Connecticut, Florida, Illinois, Massachusetts, Maryland, Minnesota, Nebraska, Oklahoma, Utah, and Texas which have already implemented these types of regulations. Commendably, most DA offices in Nevada report having already adopted these polices proactively, and AB101 will ensure these best practices continue.

Such clear and rational regulations for the use of jailhouse informants could help prevent wrongful convictions by providing prosecutors and the defense with the tools they need to ensure the witness is telling the truth. Such transparency could also help avoid any constitutional violations against both the innocent and the guilty. Our criminal justice system doesn’t work without constitutional correctness, so when a jailhouse informant ends up being dishonest, we not only increase the risk that the innocent are convicted, but also that the guilty could have their convictions overturned because of a prosecutor’s failure to disclose the informant’s deal and prior history to defense counsel.

AB101 could also protect victims of crime from being dragged through endless court proceedings and taxpayers from footing the bill. In Berry’s case, the system failed the victim. The wrong person was convicted and sent to prison. It wasn’t until the real killer’s confession and the informant’s recantation came to light that the victim received anything resembling justice.

The Nevada District Attorney’s Association along with a bipartisan group of organizations supports this legislation, which now sits before the Senate Committee on Judiciary. I strongly urge the Senate, in the interest of justice, to act and join us in supporting these commonsense reforms.

Jensie Anderson is the former legal director of the Rocky Mountain Innocence Center and consulting attorney for DeMarlo Berry in his post-conviction review petition.