New NY Law Urged to Keep Liars Out of Court

A small-time thief and forger got his sentence of up to six years cut to six months by testifying against Steve Barnes, recounting an incriminating jailhouse conversation.

Barnes was convicted of murder and spent nearly 20 years in New York's maximum security prisons, partly on the strength of the thief's tale. The jailhouse snitch, however, was lying.

It's one of the judicial system's dark truths: Witnesses lie in the courtroom, sometimes to devastating effect.

The thief, who doesn't even remember testifying, "got six months and went home," said Barnes, now 44. "I lost 20 years of my life."

Two years ago, DNA testing exonerated Barnes of the Sept. 18, 1985, rape and strangling of 16-year-old Kimberly Simon, a high school classmate from suburban Utica whose body was found along a back road. Oneida County District Attorney Scott McNamara said if that technology had been available back then Barnes would never have been arrested.

"He would have been exonerated before the handcuffs were put on," McNamara said. The prosecutor helped the Innocence Project get the old crime-scene evidence examined, using more modern science. "We all want to get it right."

Because of cases like Barnes', the New York Bar Association wants the law to require corroborating evidence before jailhouse snitches can testify. Judges would also have to instruct juries they must cautiously consider witness credibility in light of any benefit they'd get. It would apply to informants who are not accomplices.

McNamara, DA since 2007, said his office uses jailhouse snitches very seldom now.

"There was a group of people back then just seemed to always have information when they got jammed up," he said. "There still is. We just don't use them."

He and other prosecutors are troubled by the Bar Association proposal, saying it could discourage victims from testifying.

A Northwestern University Law School survey in 2004-2005 found that 51 out of 111 death row inmates around the country who were later exonerated had been convicted with testimony against them from snitches, in some cases, other suspects. In capital cases, snitches were the most common contributor to bad convictions, followed by erroneous eyewitness identification in 25 percent, false confessions in 14 percent and false or misleading scientific evidence in 10 percent.

Investigators have been working for the past two years to identify Kimberly Simon's killer.

The old crime scene DNA has degraded, making a specific match difficult but still useful to rule out suspects, including Barnes, he said.

Barnes was the 24th person in the state freed by the Innocence Project, a nonprofit legal clinic at New York's Cardozo Law School that uses DNA evidence to overturn bad convictions. In two decades, 254 convictions have been overturned nationally.

Richard Rifkin, bar association special counsel and former deputy state attorney general, said perjury prosecutions and convictions are "rare," that it's difficult to prove false testimony wasn't simply an error or poor memory.

McNamara said he favors eliminating the five-year statute of limitations on perjury and making the penalties stiffer, especially in murder cases.

Warren County District Attorney Kate Hogan said the legislation requiring corroborating evidence and more specific judges' instructions about witnesses would keep some from coming forward — especially victims of sexual assault who get counseling, help with restitution and even safe housing from district attorneys' offices.

"That's going to have an extraordinarily chilling effect on witnesses," she said.