Will Michael Morales Be The Next To Lose the Death Penalty Lottery?

March 29, 2005 by Natasha Minsker, Death Penalty Policy Director, The Daily Journal

Two death penalty cases are tried in the same county, at the same time, and are marred by the same illegal conduct by the prosecutor. Both involve false testimony by informant witnesses to whom the prosecutors gave valuable benefits. Why is one defendant getting a new trial and the other rushing towards a date with death?

On March 1, 2005, the Ninth Circuit Court of Appeals denied Michael Morales’ petition for an en banc hearing, leaving only one petition for certiorari to the U.S. Supreme Court standing between Morales and an execution date. Six days later, the same court reversed the death sentence and conviction of Blufford Hayes because the prosecutor knowingly presented the false testimony of an informant witness. The San Joaquin County District Attorney’s Office tried both Hayes and Morales within the same year. The prosecutor in the Morales case committed the same misconduct as his colleague in the Hayes case.

We now know that the risk of wrongful convictions is greatly increased by the double-headed hydra of illegal conduct by prosecutors coupled with their reliance on informant witnesses who have something to gain from their testimony. San Francisco Magazine recently reported that “[s]ince 1989, at least 200 inmates have been released from California prisons after courts found that they were unjustly convicted.” (http://www.sanfran.com/archives/view_story/200/, viewed March 2, 2005.) Of these cases, “50 percent entailed misconduct or serious error by prosecutors at trial[, . . . and] 20 percent involved false testimony by an informant at trial.” (Ibid.) The Illinois Commission on Capital Punishment found that of 13 death row exonerations, six involved false testimony by jailhouse informants or accomplice informants. (http://www.idoc.state.il.us/ccp/ccp/reports/index.html, viewed March 17, 2004.)

Indeed, the abuse of jailhouse informants and the ease with which informants may fabricate “confessions” has been well documented in the largest county in California. A Los Angeles County Grand Jury report concluded that from 1979 to 1989, the Los Angeles County District Attorney “failed to fulfill the ethical responsibilities required of a public prosecutor by its deliberate and informed declination to take the action necessary to curtail the misuse of jail house informant testimony.” (Report of the 1989-1990 Los Angeles County Grand Jury, Investigating the Involvement of Jail House Informants in the Criminal Justice System in Los Angeles County, p. 6.)

What has only recently come to light is the prevalence of this problem in death penalty cases in San Joaquin County during the 1980s. In Blufford Hayes’ case, the prosecutor, from the San Joaquin County District Attorney’s office, entered into a secret deal with the attorney representing an informant witness, agreeing to dismiss felony charges pending against the witness. The prosecutor then hid the deal from Hayes’ attorneys, the court, and the jury. At trial, the prosecutor elicited false testimony from the witness to the effect that he was receiving nothing in exchange for his testimony. The prosecutor not only failed to correct this false testimony, he affirmatively represented to the court that there was no deal, going so far as to argue to the jury that this demonstrated the witness’s credibility.

The prosecutor consistently concealed the truth, writing a letter to the California Supreme Court during Hayes’ appeal reaffirming that he never made “a specific offer of any particular disposition” to the informant. It was not until 1997, 16 years after Blufford Hayes was convicted and sentenced to death, that the prosecutor finally acknowledged the existence of the deal, and then only because he was forced to testify in another San Joaquin County proceeding and was confronted with evidence documenting the secret deal. Hayes had to wait eight more years for the court to review and reverse his conviction.

Michael Morales is still waiting and may be running out of time. The Morales case prominently featured the testimony of a jailhouse informant who claimed that Morales had confessed to him. This purported confession was the only evidence to support the special circumstance; it was crucial to securing Morales’ death sentence.

It was later discovered that, prior to trial, the prosecutor, also from the San Joaquin County District Attorney’s office, entered into a secret agreement with jailhouse informant Bruce Samuelson. In exchange for Samuelson’s testimony, the prosecutor agreed to dismiss four of six felony charges pending against Samuelson in another case. The prosecutor also secured court approval of a minimal county jail sentence for Samuelson. The prosecutor then hid this deal from Morales’ attorney, the judge, and the jury. Even more disturbing, the prosecutor promised Samuelson these benefits before Morales allegedly confessed to him.

When asked on the stand whether he had received anything in return for his testimony, Samuelson falsely stated that the prosecutor would only be making a “recommendation” on his behalf. The prosecutor let this false testimony stand in front of the jury, without correction or clarification.

Beyond covering-up the deal, the circumstances surrounding Morales’ so-called confession to Samuelson are questionable at best. Samuelson was never housed in the same jail cell with Morales. Given the physical layout of the jail, in order for Morales to confess to Samuelson, other inmates would have heard the conversation. Yet, no other inmates ever corroborated Samuelson’s story. Inmates also knew that guards monitored all of their conversations with an intercom system.

In 1993, the California Attorney General’s office confronted Samuelson with these facts. Samuelson stated that he and Morales spoke together in Spanish so others would not listen in. Unbeknownst to Samuelson, however, Morales does not speak Spanish. His parents do not speak Spanish. He is a fourth generation American.

An FBI expert who examined Samuelson’s polygraph test years later concluded that the test unequivocally established that Samuelson was lying when he said Morales confessed. But the polygraph report that the prosecutor gave Morales’ attorneys at the time of the trial claimed that Samuelson was telling the truth.

Both the California Supreme Court and the U.S. Court of Appeals relied on Samuelson’s testimony to uphold Morales’ death sentence.

Yet, every organization and commission to investigate the problem of wrongful convictions has concluded that this is just the type of testimony that should not be relied on in death penalty cases. The Constitution Project, a bi-partisan organization including former prosecutors and judges, observed that informants “frequently have the opportunity and the clear motivation to fabricate evidence to benefit their status at the expense of justice . . .” (http://www.constitutionproject.org/dpi/MandatoryJustice.pdf, viewed March 17, 2005.)

Both the Illinois Commission on Capital Punishment and the Constitution Project recommend that the death penalty should not be sought in cases based solely or substantially on the testimony of a jailhouse informant. In addition, both recommend reforms to prevent illegal conduct by prosecutors, including “open file” discovery, depositions of prosecution witnesses, and greater judicial review of the discovery process in death penalty cases, practices which California has yet to adopt.

In August, the California Senate established the California Commission on the Fair Administration of Justice. The Commission’s mandate is to investigate the problem of wrongful convictions in California and whether the death penalty is administered in an arbitrary and unfair manner. The Commission must investigate the widespread abuse of informant witnesses and related illegal conduct by prosecutors.

In the meantime, the question remains, will Michael Morales be the next to lose the death penalty lottery?