The prosecution's case against the prime suspect in the murder of a Washington, D.C.-intern just fell apart, all because of an illegally recorded conversation between small-stage actress and a jailhouse informant.
On Thursday, prosecutors decided to drop all charges against Ingmar Guandique for the 2001 murder of intern Chandra Levy. Mr. Guandique had already served five years of a 60-year prison sentence. The unraveling of the case against him underscores the problem of using testimony by convicted felons snitching on fellow inmates – and how even illegally obtained evidence can make all the difference.
The "new information" that prompted prosecutors to drop charges against Guandique came from Babs Proller, a Maryland actress who met the felon-turned-informant Armando Morales when they were neighbors in a Maryland hotel, The Washington Post reported. Ms. Proller's initial warmth toward a friendly neighbor turned to suspicion after she learned about his shady past, and he made dark threats toward her ex-husband.
To protect herself, Proller began recording their hours-long conversations, and that was how, she alleges, she obtained evidence that the star testimony in the Chandra Levy murder case was fiction.
Proller says her recording contains a confession from Mr. Morales about lying on the witness stand in 2010, when his dynamic personality, gritty gang background, and detailed story persuaded jurors that Mr. Guandique had admitted to murdering Ms. Levy by mistake when he tried to rob her.
The only problem? Proller's evidence is technically illegal.
Maryland has a "two-party consent" law, meaning a private conversation cannot be recorded without permission from both involved parties, according to Harvard University's Digital Media Law Project based in Cambridge, Mass. Many states have "one-party consent" laws, meaning anyone may record their own conversations. This would not be the first time the discrepancies in state law played a role in high-profile cases, as evidence in the Monica Lewinsky scandal was famously jarred by a recorded phone call occurring across state lines.
"These laws not only expose you to the risk of criminal prosecution, but also potentially give an injured party a civil claim for money damages against you," according to the Digital Media Law Project. "Eleven states require the consent of every party to a phone call or conversation in order to make the recording lawful."
The prosecutors have told Proller they will not press charges, the Post reported, but this will be yet another case where the consent laws come into play.
"She did this because she believed then, and believes now, that it was the right thing to do," Proller's attorney Edward Brady told the Associated Press.
The decision to drop the case against Guandique has sparked questions about the always-questionable practice of relying on the cellmates of suspected murderers for testimony.
“It is now clear that the jailhouse informant, who was central to the government’s case, was a perjurer who too easily manipulated the prosecutors,” attorneys said in the statement.
The case also highlights the need for prosecutors to clearly disclose to juries any details of a witness's background before testimony, including whether the witness might himself be a criminal, taking a deal to tell tales to improve his own odds, say independent attorneys commenting on the case. Jurors were not told that Morales had asked to be put into a witness protection program in exchange for his testimony.
In the view of Brandon Garrett, a law professor at the University of Virginia who wrote a book on the subject, this is why prosecutors should abandon use of jailhouse informants altogether.
"If they are to be used there should be reliability review by a judge and all statements and interviews they give should be videotaped. All leniency offers should be documented and disclosed," he told the Associated Press.