Snitch Testimony, and the Magical Appearance of Hair

At Jeffrey Wogenstahl’s trial, testimony was given by a so-called ‘jailhouse snitch’, Bruce Wheeler, an informant who said he had heard Jeff confess to the murder of 10-year-old Amber Garrett. Why should we worry about this? Because, as Radley Balko wrote last week,
“Most jailhouse snitches are lying…
…The very idea that people regularly confess to crimes that could put them in prison for decades, or possibly even get them executed, to someone they just met in a jail cell and have known for all of a few hours is and has always been preposterous. Not to mention the fact that these are people whose word prosecutors wouldn’t trust under just about any other circumstance.”

We do not yet know much about Wheeler’s motivation for testifying against Jeff, but Clifford Zimmerman states*:
“Typically informants have multiple motivations and expect some sort of benefit.”

In Jeff’s case, snitch testimony was contradicted by other evidence: Wheeler claimed Jeff had described rape, yet the victim’s body showed no sign of this. And the ‘Results’ section of a report not disclosed to the jurors confirms that a thorough, close forensic examination of the child’s underwear revealed no evidence of sexual assault.

Shockingly, a year after this thorough examination, and a week after meeting with prosecutors, an FBI agent testified not only that he found a pubic hair on the underwear, but that it probably belonged to Jeff. The hair’s materialization conveniently provided the prosecution with collaborating evidence for the testimony of the snitch.

Perhaps this should not surprise us. Last month we heard that the vast majority of FBI hair experts’ testimony was inaccurate and favored the prosecution. Chris Fabricant, director of strategic litigation at the Innocence Project, told The Daily Beast that there is evidence of deliberate deception:
“There are only two conclusions that can be drawn from this. There was massive scientific illiteracy at the FBI crime lab for multiple decades, or this was done deliberately. There’s plenty of evidence of both, really.”

From deliberately distorting hair evidence, it would have been a short step to improperly conjuring up the hair itself. In Jeff’s case, known prosecutor misconduct in other aspects of the trial makes further malpractice highly likely. With forensic ‘evidence’ created to collaborate the snitch testimony, the prosecutor just needed to improperly vouch for Wheeler’s credibility for the jury to be convinced.

The likelihood of this highly significant prosecutor misconduct cannot be ignored. Just as the FBI has admitted its errors in hair testimony, so the courts should accept that Jeff’s trial was flawed. Jeff should be awarded a new trial.

*Clifford S. Zimmerman, “From the Jailhouse to the Courthouse, The Role of Informants in Wrongful Convictions”, Chapter 3 in “Wrongly Convicted, Perspectives on Failed Justice”, ed. Saundra D. Westerfelt and John A. Humphrey, 2001
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