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DECLARATION OF KEVIN McNALLY REGARDING TESTIMONY BY COOPERATING WITNESSES AND JAILHOUSE INFORMANTS IN FEDERAL CAPITAL CASES 1. I currently serve, along with David Bruck of South Carolina and Richard Burr of Oklahoma, as Federal Death Penalty Resource Counsel, assisting court-appointed and defender attorneys charged with the defense of capital cases in the federal court. I have served in that capacity since the inception of the Resource Counsel Project in January, 1992. The Project is funded and administered under the Criminal Justice Act by the Defender Services Division of the Administrative Office of the United States Courts. 2. My responsibilities as federal resource counsel include the monitoring of all federal capital prosecutions throughout the United States in order to assist in the delivery of adequate defense services to indigent capital defendants in such cases. This effort includes the collection of data on the initiation and prosecution of federal capital cases and practices in those cases.1 3. In order to carry out the duties entrusted to me, I maintain a comprehensive list of federal death penalty prosecutions and information about these cases. I accomplish this by reviewing dockets and downloading and obtaining indictments, pleadings of substance, notices of intent to seek or not seek the death penalty, and by telephonic or in-person interviews with defense counsel or consultation with chambers. This information is regularly updated and is checked for accuracy by consulting with defense counsel. The Project's information regarding federal capital prosecutions

The work of the Federal Death Penalty Resource Counsel Project is described in a report prepared by the Subcommittee on Federal Death Penalty Cases, Committee on Defender Services, Judicial Conference of the United States, FEDERAL DEATH PENALTY CASES: RECOMMENDATIONS CONCERNING THE COST AND QUALITY OF DEFENSE REPRESENTATION (May, 1998), at 28-30. www.uscourts.gov/dpenalty/1COVER.htm. The Subcommittee report "urges the judiciary and counsel to maximize the benefits of the Federal Death Penalty Resource Counsel Project ..., which has become essential to the delivery of high quality, cost-effective representation in death penalty cases ...." Id. at 50.

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has been relied upon by the Administrative Office of the United States Courts, by the Federal Judicial Center and by various federal district courts. A. "Cooperating Witnesses" 4. In 2003, we examined the first 68 defendants involved in federal capital trials. At least 69% percent of these capital cases that have gone to trial (47 of 68) included testimony by cooperating witnesses who stood to avoid severe punishment themselves. An additional 21% (14 cases) included testimony from jail house informants. Only 10% of these trials were free of both types of unreliable testimony.2 5. The federal capital prosecutions reaching trial involving "cooperating" witnesses were: Death sentences: United States v. David Ronald Chandler (N.D. AL CR No. 90-CR-H-266-E) (clemency granted); United States v. Corey Johnson, James Roane and Richard Tipton (E.D. VA CR No. 3:92-CR-68); United States v. John McCullah (E.D. OK CR No. 1:92-032-S) (death sentence vacated, authorization withdrawn); United States v. Juan Raul Garza (S.D. TX CR No. 93009) (executed); United States v. Bountaem Chanthadara (D. KS CR No. 94-10129-01) (death sentence vacated, authorization withdrawn); United States v. Daniel Louis Lee (E.D. AR CR No. LR-CR-94-243); United States v. Len Davis and Paul Hardy (E.D. LA CR No. 94-381) (awaiting retrial); United States v. Orlando Hall and Bruce Webster (N.D. TX CR No. 4:94-CR-121-Y); United States v. Timothy McVeigh (D. CO CR No. 96-CR-68-M) (executed); United States v. Darryl Alamont Johnson (N.D. IL CR No. 96 CR 379); United States v. David Paul Hammer (M.D. PA CR No. 4-96-CR-239); United States v. Billie Jerome Allen and Norris Holder (E.D. MO CR No. 4:97

See Samuel R. Gross, "Lost Lives: Miscarriages of Justice in Capital Cases," published in Law and Contemporary Problems, August 1998, that "witness perjury is a far more common cause of error in murders and other capital crimes than in lesser crimes." 2

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CR 0141 ERW (TCM)); United States v. Richard Stitt (E.D. VA CR No. 2:98 CR 47); United States v. Arboleda Ortiz and German Sinisterra (W.D. MO CR No. 98-00311-01/05-CR-W-2); United States v. Christopher Vialva and Brandon Bernard (W.D. TX CR No. W99 CR 070); United States v. Julius O. Robinson (N.D. TX CR No. 00-CR-260-ALL) and United States v. Sherman Lamont Fields (W.D. TX CR No. 01-CR-164-ALL). Non-death sentences: United States v. Alex Cooper and Darnell Davis (N.D. IL CR No. 89-CR-580); United States v. Thomas Pitera (E.D. NY CR No. 90-0424 (RR)); United States v. Reynaldo and Baldemar Villarreal (E.D. TX CR No. 9:91-CR4); United States v. James Norwood Hutching and Ramon Medina Molina (E.D. OK CR No. 1:92-032-S); United States v. Arnold Mark Henry, Frantz Oscar and Jean Claude Oscar (E.D. VA CR No. 93-CR-131); United States v. Todd Moore (E.D. VA CR No. 2:93 CR 162); United States v. Walter Diaz and Tyrone Walker (N.D. NY CR No. 94-CR-328); United States v. Dennis B. Moore (W.D. MO CR No. 94-00194); United States v. Phouc H. Nguyen (D. KS CR No. 94-10129-01); United States v. Terry Lynn Nichols (D. CO CR No. 96-CR-68-M); United States v. Dean Anthony Beckford, Leonel Cazaco, Claude Dennis and Richard Thomas (E.D. VA CR No. 3:96 CR 00087); United States v. Anthony Jones (D. MD CR No. WMN-96-0458); United States v. Quan Ray (N.D. IL CR No. 96 CR 379); United States v. Marvin Lee Holley (N.D. AL CR No. 96-B-0208-NE); United States v. Shaheem and Raheem Johnson (E.D. VA CR No. 97-003140-A); United States v. Chevy Kehoe (E.D. AR CR No. LR-CR-97-243); United States v. Gurmeet Singh Dhinsa (E.D. NY CR No. 97-672 (S-3) (ERK)); United States v. Plutarco Tello (W.D. MO CR No. 98-00311-01/05-CR-W-2); United States v. Marcus Sanders (S.D. AL CR No. 98-0056-CB); United States v. Mohamed Rashed Daoud Al'Owhali and Khalfan Khamis Mohamed (S.D. NY CR No. 98 CR 1023); United States v. Tommy Edelin (D. DC CR No. 98-264);

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United States v. Mariano Martinez (C.D. CA CR No. 99-83-(A)-DT); United States v. Billy Joe Lyon (W.D. KY CR No. 4:99-CR-11-M); United States v. Joseph Minerd (W.D. PA CR No. 99215); United States v. Carl Haskell (W.D. MO CR No. 00-CR-395-ALL) and United State v. Brent Simmons (W.D. VA CR No. 5:04-CR-00014-SGW-ALL) (the jury apparently did not believe the snitch testimony). Lesser included conviction: United States v. Howard L. Smith (E.D. VA CR No. 97-341-A). Acquittals: United States v. Edward Alexander Mack, Chedrick Crummie and Kevin D. Rozier (S.D. FL CR No. 93-252-CR-UUB) and United States v. Mario Castillo and Gerardo Jacobo (C.D. CA CR No. 99-83-(A)-DT). Aborted trials due to guilty pleas: United States v. Michael Murray (M.D. PA CR No. 92200); United States v. Stacy Culbert (E.D. MI CR NO. 92-81127); United States v. Everett Spivey (D. NM CR No. 95-491 LH); United States v. Marvin Damon (E.D. VA CR No. 3:95CR45); United States v. Jason DeLaTorre (D. NM CR No. 95-538-MV); United States v. Deric Frank (S.D. NY CR No. S2 97 Cr 269 (DLC)); United States v. Wilfredo Acosta-Martinez and Carlos Llera-Plaza (E.D. PA CR No. 98-362) and United States v. Steve Satcher (D. MD CR No. AW00-0105). Suicide: United States v. Bilal Pretlow (D. NJ CR No. 90-CR-238). Hung jury: United States v. Ricky Brown (N.D. WV CR No. 1:98CR34). Mistrial: United States v. Victor Rodriguez (E.D. PA CR No. 98-362). 6. Innocence: Charges were dropped against another federal capital defendant after he was falsely implicated by cooperating witnesses hoping for leniency. United States v. Reginald Brown (E.D. MI CR NO. 92-81127). B. Jailhouse Informants

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7. Additional federal capital trials involved testimony or potential testimony by jailhouse informants: Death sentences: United States v. John Javila McCullah (E.D. OK CR No. 92-CR032-S) ("snitch" did not testify); United States v. Orlando C. Hall (N.D. TX CR No. 4:94-CR-121Y) (important witness); United States v. Jeffrey Williams Paul (W.D. AR CR No. 6:96 CR 0022); United States v. Aquilia Marcivicci Barnette (W.D. N.C. CR No. 3:97CR23-P) ("snitch" did not testify); United States v. Billie Allen (E. D. MO CR No. 4:97 CR 0141 ERW (TCM)); United States v. Willis Haynes (D. MD CR No. PJM-98-0502) (important witness); United States v. Keith Nelson (W.D. MO CR No. 99-138H-01) (government disclosed pretrial the existence of the "snitch"); United States v. Marvin Gabrion (W.D. MI CR No. 1:99-CR-76) (two inmates); #400 here United States v. Alfred Bourgeois (S.D. TX CR No. 02-216-ALL) (jailhouse snitches testified at trial); United States v. Dustin Honken (N.D. IA CR No. 00 CR 3034 MWB) (some of the snitches were of very dubious credibility) and United States v. Angela Johnson (N.D. IA CR No. 00CR3034 MWB) ) (jailhouse snitch persuaded the defendant to reveal the whereabouts of the victims' bodies by means of a legal memo, showing that the case predated the FDPA and therefore was not deatheligible).3 In United States v. Richard Jackson (W.D. NC CR No. 00-CR-74-ALL) , a letter was disclosed strongly suggesting that an important witness - a jailhouse informant - had committed perjury. The Court struck his testimony. The government claimed to have other jailhouse informants. Non-death sentences: United States v. Trinity Edward Ingle (W.D. AR CR No. 6:96 CR 60022); United States v. LaFawn Bobbitt and Rashi Jones (E.D. VA CR No. 97 CR 129); United

See United States v. Johnson, 196 F.Supp.2d 795 (D. IA 2002), rev'd, 352 F.3d 399 (8th Cir. 2004). 5

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States v. Dustin Higgs (D. MD CR No. PJM-98-0502) (important witness); United States v. Cornelius Peoples and Xavier Lightfoot (W.D. MO CR No. 98-00149-02-CR-W-6) (important witness); United States v. Ricky Lee Brown, et al. (N.D. WV CR No. 1:98CR34) (six "snitches" but none who eventually testified after a pre-trial hearing was held); United States v. Kenneth Tatum (E.D. TX CR No. 2:99 CR 5); United States v. Christopher Wills (E.D. VA CR No. 99-00396); United States v. Billy Lyon (W.D. KY CR No. 4:99-CR-11-M) (former cellmate); and United States v. Walter Church and Samuel Stephen Ealy (W.D. VA CR No. 00-CR-104-A) (taped conversations in the cell with the snitch, one conversation after the snitch, with to the government's knowledge, either made or was provided some type of alcoholic beverage); United States v. Coleman Johnson (W.D. VA CR No. 3:00 CR 00026) (jailhouse snitch paid $3,000 by the government and promised release in 6 months); United States v. Kevin Gray (D. DC CR No. 1:00CR00157) (informant led to search of cell for list of names of people who died violently in DC; United States v. Johnny Davis (E.D. LA CR No. 01-CR-282-ALL) (inmate snitch); United States v. Brent Simmons (W.D. VA CR No. 5:04-CR-00014-SGW-ALL) (the jury apparently did not believe the snitch testimony); United State v. Styles Taylor and Keion Thomas (N.D. IN CR No. 2:01 CR 073 JM) (four jailhouse witnesses) and United States v. Fausto Gonzalez and Wilfredo Perez (D. CT CR No. 02-CR-7-ALL) (government withdrew snitch as a witness after credibility evaporated). Acquittal: United States v. Gerardo Jacobo (C.D. CA CR No. 99-83-(A)-DT) (defendant's cellmate later turned snitch). Notice of Intent Dismissed by Judge: United States v. Charles Louis Stewart (W.D. KY CR No. 4:99-CR-11-M).

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Dismissed: United States v. Darrell David Rice (W.D. VA CR No. 02-CR-26-ALL) (inmate snitch). 8. Additional federal capital prosecutions which have involved jailhouse informants are: United States v. Ian Rosario Montanez (D. PR CR No. 96-001 (PG)) (one "snitch" was the same as in Rosado); United States v. Tim Holloway (M.D. TN CR No. 3:96-00004) (co-conspirator snitch); United States v. David Cruz (D. NJ CR No. 96-730 (AET)); United States v. Jaime RosadoRosario (D. PR CR No. 97-049 (JAF)) (witness killing plot from jail); United States v. Lam (E.D. CA CR No. S 97-054-WBS) (jailhouse informant surfaced after deadlocked jury and government then decided to seek the death penalty); United States v. Donnell Young (M.D. TN CR No. 3:9800038 (NIXON)); United States v. Dean Kershaw, Jr. and Arthur Cunningham Hermes (E.D. NC CR No. 5:00 CR 00175) (alleged confession to a fellow inmate); United States v. Rico Garcia (N.D. CA CR No. 00 20018 JF) (N.D. CA CR No. 00-0654 CRB) (numerous snitches in Nuestra Familia prosecution); United States v. John Lanny Lynch (D. MT CR No. 99-18-M-DWM) (jail house informant)and United States v. Quentin Ponder (E.D VA CR No. 04 CR 103 ALL). See also United States v. Vargas (W.D. OK CR No. 99-CR-63-ALL) (no "snitch" but two INS agents placed in defendant's cell). 9. Such testimony is, of course, common in BOP murder cases. See, e.g., United States v. Gregory Storey (D. KS CR No. 96-40018-01-OES); United States v. Richard McIntosh, et al. (S.D. IL CR No. 99-40044); United States v. Patrick Noble (E.D. KY CR No. 00-CR-132-ALL); United States v. William and Rudy Sablan (D. CO CR No. 00-CR-531-ALL) and United States v. Anthony Zaragoza (C.D. CA CR No. 3:00CR8).

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10. In some of these cases, the government was already in touch with the informant. See United States v. Anthony Jones (D. MD CR No. WMN-96-0458), 215 F.3d 1322, 2000 WL 690182 (4th Cir. Md.) (co-defendant testimony after snitch works a deal and is transferred to Jones' location); United States v. Heatley, et al., 994 F. Supp. 483, 487 (SDNY 1998), ordering a screened in camera interview of the anonymous jailhouse informant who was meeting with an AUSA before the alleged jailhouse confession. The Court stated: understanding that a defendant's Sixth Amendment rights are fundamental and an interview of the inmate informant is the only manner in which counsel might secure sufficient information to entitle him to a hearing, the Court agreed as an exercise of its discretion to hold an in camera interview by defense counsel of the informant. During the interview, the informant's identity was screened and defense counsel was not permitted to elicit any information which might identify the informant. 11. The information detailed herein is maintained in the ordinary course of business of the Federal Death Penalty Resource Counsel Project, and is accurate to the best of my knowledge, ability and belief. I declare under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this day of July, 2005. _____________________________ Kevin McNally

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