The drowning man

In a murder trial that lasted all of last week, one of our themes was “the drowning man,” borrowed from an attorney who spoke at a NACDL conference recently but whose name I can’t remember. If I find his name I will update this post later. The following is now a matter of public record:
The state’s entire case against my client was based on one jailhouse snitch. The police attempted to check out the snitch’s story and it did not check out. The snitch was given a polygraph, with questions specifically on the subject of his testimony, and he failed the polygraph. We called the State’s DNA expert in our case, who testified that not only did DNA found at the crime scene exclude my client and his co-defendant, but there was DNA present from at least one unidentified male and one unidentified female.
The state’s theory was that the defendants robbed two female drug dealers and made off with their money and cocaine. Except that we presented evidence in our case that three people who entered the house and found the bodies made off with a briefcase full of drugs, that they claimed to find sitting next to the head of one of the victims.
When using this type of testimony, and ignoring the state’s own credible, believable, and reliable evidence that points towards innocence, could it be that the prosecutor is blind to what he is doing, and believes that he is ethically seeking justice? I have no doubt that if I, or any defense attorney, did the things that some prosecutors and cops do in Horry County that I would be disbarred as a result. A different set of rules apply to our brethren in the solicitor’s office.

The drowning man:
The other day I read a story about a man, a good man and a strong man, who heard the desperate cries of a drowning man, way out in the middle of a lake. The good man immediately jumped into the water and he swam out to the drowning man to save him. The story does not have a happy ending. You see, the drowning man grabbed onto the good man and in his desperation the drowning man pulled down the good man and both of them died in the middle of that lake.
Ladies and gentlemen, that snitch is the drowning man. He is like a man out in the middle of the lake or the ocean without a life raft or a boat or a life vest, he has nothing to hold onto, and he is just out there flailing away, just trying to keep his head above water. He is the drowning man and he will do anything to save himself, he will grab at anything, the drowning man has no conscience, the drowning man has no sense of morality or decency, the drowning man is a dangerous man.
Just ask any lifeguard about this and they will tell you that the most dangerous part of a rescue of a drowning man is the drowning man himself. He is desperate, he will grab at anything and he will pull the lifeguard down to his death in a second. Lifeguards are trained in the dangers of a drowning man, they know what to expect and know how to handle the drowning man.
The lessons learned by the lifeguard before going on duty are helpful to us here because [John Doe Snitch] is the drowning man – he has been to prison and he is going back to prison and he knows it, he can feel it, as if his life is almost over and he knows it. He was sitting in his jail cell with the water just about to go over his head for the last time and just then the prosecutor swims up to him and offers him hope, and of course he grabs at it and he will do anything to grab at it, he will say anything to grab at it, just like the drowning man.
The prosecutor swam up to this drowning man and offered him a hand in rescue and this desperate soul grabbed it wildly and pulled the prosecutor under and he has lost his moral compass and drowned with him. The prosecutor got too close to him and offered him something he could not refuse and now the drowning man has pulled him down. . . .

For the record, I am not bashing prosecutors willy-nilly – there are some incredibly upright and conscientious attorneys in our solicitor’s office. But, I believe that when there is something terribly wrong with the system it needs to be talked about. Allowing jailhouse snitches to testify without corroboration is a travesty of justice, and it is the norm rather than the exception. Anytime that a person sitting down there at the jail gets information on a case, whether it is from going through someone’s discovery materials, talking to the defendant, or just listening to the gossip, if they believe that they can get help on their charges by providing information to the prosecutors, you’d better believe that they will. And there is no better information than a jailhouse confession, or in some circumstances even placing yourself in the center of the crime.
Testimony given by a person who is facing charges himself is inherently unreliable, and should never be admitted in court unless there is some kind of corroboration. Testimony by jailhouse snitches may be necessary in some cases, and that is understandable, but that testimony should be verified by some means before allowing it in front of a jury. Presumption of innocence, proof beyond a reasonable doubt, our entire system of justice and protection against wrongful convictions is called into question by the practice of some prosecutors of trawling the jails for jailhouse snitches.
Consider this – an unethical (or overzealous) prosecutor or detective could make a case against anyone: me, you, or anyone that we know, with jailhouse snitches and no other credible evidence. The threat of prosecution and the promise of freedom is a powerful motivator, and that is why there must be corroboration before we put this kind of testimony in front of a jury.

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