A Group of Prosecutors Want SCOTUS To Save Death Row Inmate James Dailey
Former prosecutor Bennett Gershman: "The use of jailhouse informants...is one of the great abuses in criminal trials across America."
James Dailey, a Florida death row inmate, has gained an interesting group of supporters. Eight current and former prosecutors and attorneys general, some of whom have stood behind death sentences, filed a brief asking the U.S. Supreme Court to review Dailey's death sentence.
As Reason previously reported, Dailey was sentenced to death over the murder of Shelly Boggio. Boggio's body was found on May 6, 1985. She was naked and her body had been stabbed multiple times. Dailey's former roommate, Jack Pearcy, who had actively tried to spend intimate time with the Boggio, admitted to stabbing her at least once and provided details of the crime to investigators. He owned a knife consistent with the stab wounds and was the only person identified by eyewitness the night she was murdered. Now serving a life sentence for murder, he has also confessed that he was solely responsible for the crime at least four times. Twice he's told other inmates that Dailey was innocent.
Dailey was ultimately convicted based on the testimony of unreliable jailhouse informants like Paul Skalnik.
Skalnik is recognized for being one of the most prolific and egregious jailhouse informants in history. Not only is Skalnik's truthfulness still being questioned to this day, but it is apparent that his cooperation in convicting Dailey earned him a reward. Though he promised the jury he was receiving nothing for his testimony, he was released from jail just five days after Dailey was sentenced to death. A Florida Parole and Probation Commission memo cited his "cooperation with the State Attorney's Office in the first-degree murder trial" as the reason for his early release despite his parole officer already labeling him a flight risk and a danger.
This was not the first time Skalnik was rewarded for his cooperation. Prosecutors once dismissed a child-sex charge involving a 12-year-old girl in exchange for his testimony, a fact withheld from the jury in Dailey's case.
The eight prosecutors and attorney generals who signed the amicus brief in support of reviewing Dailey's case believe prosecutors took on too much risk by relying on the "inherently unreliable" testimonies of jailhouse informants, especially when no physical evidence tied Dailey to the crime.
"We know, as former or current prosecutors and attorneys general, the inherent risk that jailhouse informants give false testimony to gain personal benefits," they wrote. "Because informant testimony is inherently unreliable, prosecutors have an obligation to present an accurate and complete picture of the benefits received so that jurors can consider in context the credibility to which the testimony is entitled."
The brief cites two sources showing jailhouse testimony to be the leading factor in convictions for death row cases that were eventually exonerated. A Center on Wrongful Convictions study from 2005 found that of the 111 exonerations carried out following the re-establishment of the death penalty in 1973, jailhouse informants had accounted for 45 percent of the wrongful convictions.
"The use of jailhouse informants like [Skalnik] is one of the great abuses in criminal trials across America," Bennett Gershman tells Reason. Gershman, who was a New York prosecutor for ten years and is now a professor at Pace Law School and a leading voice on prosecutorial misconduct, signed the brief.
Identifying Skalnik as the "worst of the worst" of jailhouse informants, Gershman says his inclusion made a "mockery" of the idea that Dailey received a fair trial. When asked what could be done to avoid similar missteps in the future, Gershman notes that the jury is predisposed to believe the prosecutor's evidence. Because of this, prosecutors have the responsibility of making sure they are using credible witnesses and presenting reliable evidence. Corroboration of the jailhouse informant's testimony, he says, would help.
Gershman believes if Florida Gov. Ron DeSantis, a Republican, looks "extra closely" at the facts of the case, he too would conclude that the case against Dailey was a "travesty of justice." He adds that he's always believed that the death penalty was "an ineffective punishment."
"No one should be put to death unless we are absolutely certain that he committed the crime and that he committed it with the intent which is necessary before we find him guilty and sentence him to death," former Florida prosecutor Bruce Jacob says. He also signed the brief. "In this case, the facts are not clear. It's even possible that he did not commit the crime."
Harry Shorstein, another Florida prosecutor who signed the brief, previously wrote in The Miami Herald that Dailey should receive executive clemency before it was too late. He argued that the jury was never given the full picture of Skalnik's cooperation with prosecutors or even his own criminal past.
Dailey's supporters also include the Innocence Project of Florida and an interfaith coalition that recently sent another letter to the governor asking for clemency.