The defense for a man whose conviction in nine arson deaths was overturned over unreliable jailhouse informants has its own newly found cellblock informant for a possible second trial, creating a competing informant scenario for jurors often skeptical of such testimony.
The government has challenged the decision giving Antun Lewis, 28, a new trial in the 2005 fire deaths in Cleveland and has appealed to the 6th U.S. Circuit Court of Appeals in Cincinnati.
If last week's ruling by U.S. District Court Judge Solomon Oliver is upheld, Lewis would face a second trial in the deaths of a woman and eight children at a birthday sleepover.
Taken together, the jailhouse testimony "only served to highlight suspect connections" between the men, the judge said.
"These witnesses all presented a very similar and general account, and some of them acknowledged having learned of the fire" from media coverage, Oliver said.
The defense said its own jailhouse informant who came forward last year, Michael D. Miller, 43, will testify that he heard a government witness say that he had helped frame Lewis.
"I have not been promised anything by any of Antun Lewis' attorneys, no threats have been made to me by anyone," Miller said in a signed statement last June 9.
The defense at Lewis' trial portrayed jailhouse informants who testified against him as determined to say whatever it takes to gain lenient treatment, including shortened sentences.
With Miller, "This is not a snitch, but a jailhouse person that came forward to us," said Jeffrey Lazarus, a member of the Lewis defense team. "We didn't look for him. He completely volunteered information."
With his testimony at a second trial, Lazarus said, "This new witness is only going to get us further" toward clearing Lewis.
Competing jailhouse informants may raise eyebrows among jurors on who can be believed, according to Robert Rotatori, a Cleveland defense attorney unconnected to the Lewis case.
"You've got one snitch testifying one way and one snitch testifying the other way," he said.
"Jurors are apt to say, `Wait a minute, which snitch do we believe or do we believe none of them?' And I think they vote for believing none of them, and that helps the defense."
Federal prosecutors won't discuss their strategy for a second trial or whether the same informants will testify, according to Mike Tobin, a spokesman for the U.S. attorney's office.
Lorain County Prosecutor Dennis Will, president of the Ohio Prosecuting Attorneys Association, said any jailhouse informant must be carefully checked and, if possible, corroborated before putting him on the witness stand.
Some informants will look for a sentence reduction but some won't seek any incentive in return for their testimony, said Will, who is not connected to the Lewis case.
With jailhouse informants, many with criminal histories, "You're going to look at them a little bit closer and try to determine whether or not there is some other motivation," Will said.
Like any witness, he said, "You have an obligation to see that it's verifiable, that it's accurate and you utilize it to prosecute your case if it's appropriate."
The prosecutor's authority to offer an informant an incentive may cause jurors to be skeptical, according to Ian Friedman, a Cleveland defense attorney unconnected to the Lewis case.
"The government's snitch gets a reduction in time, the defense snitch gets absolutely nothing," he said.
According to Friedman, using an informant can backfire if the defense damages the witness's credibility or proves he lied.