The Trials of David Lillehaug

In the wake of Najarian and Shabazz, the U.S. attorney and former DFL prodigy finds his once-bright political future in question.

On January 12, 1995--the Thursday before the Martin Luther King holiday weekend--Lillehaug held a press conference. The United States was charging Shabazz with trying to hire Fitzpatrick to assassinate Farrakhan. "This is an extraordinary case," he told the reporters, "by virtue of its historical context and the identities of the defendant and alleged target. However, as we are intent that this case be tried fairly... we'll wait until trial to disclose the details of the alleged scheme, including the defendant's motive."

It didn't take that long. New York civil rights lawyer Bill Kunstler, along with local attorney Larry Leventhal and Chief Federal Public Defender Dan Scott, offered to represent Shabazz. Their investigations, and others, discovered what the feds had known all along: Not only was Fitzpatrick a semiprofessional informant, he also had a cocaine case pending and was flat broke before the FBI agreed to pay him $45,000 in the Shabazz case. What's more, transcripts of the conversations showed that while Shabazz liked the idea of seeing Farrakhan dead, she repeatedly pulled back from having Fitzpatrick kill him. And finally, the heart of the government's case--a statement Shabazz had signed when FBI agents invited themselves into her apartment--turned out to have been given under false pretenses, and at a time when Shabazz was so "shaken" the agents worried she was having a seizure.

The case went out with a whimper on May 1, the day Shabazz's trial was supposed to begin. Government lawyers, who had originally sought at least a plea bargain, were reduced to an agreement in which Shabazz promised to seek treatment and not get into trouble for two years. She also signed a statement saying her confession had not been coerced, which might have had some face-saving value for the feds--but she contradicted that claim immediately after leaving court.

"I think looking back on it a year later, the Shabazz case looks pretty good," Lillehaug says now, adding that he would not change anything--except that "I would have liked her to have called someone in another state." (Whether the initial contact was initiated by Shabazz or Fitzpatrick remains a matter of controversy; so do the FBI's investigative tactics, which Lillehaug declines to discuss.) "But that's one of the things about this job--you take what walks in the door. And I think we got to a place that was fair and just and I just hope she doesn't breach the terms of the agreement."

That, most other observers would say, is at best a nice job of spin control. "When you look at the [pretrial diversion] agreement, what's clear is that it probably never should have been brought," says Richard Oakes, a Hamline University law professor who was one of the commentators on the case for West Publishing. "Of course, the alleged victim [Farrakhan] was very high-profile. But the alleged victim was also saying, 'I'm not concerned.' And using that particular snitch was, I think, at the very least unwise."

Oakes and others note that the decision to build a case around Fitzpatrick was not Lillehaug's alone, and that in general the federal justice system has come to lean more and more heavily on unsavory informants. By the same token, it was Lillehaug who held the press conference, who got closely involved in the workings of the case, and who personally argued some motions. And, says Leventhal--who, like most other lawyers, is extremely cautious in criticizing Lillehaug--"one thing a prosecutor has to do is to give a knowledgeable and independent assessment of what the FBI and law enforcement are saying. I imagine that for someone who has not done a lot of work in criminal law, it takes a while to build the proper amount of skepticism."

Beyond Lillehaug's B.S.-detection capabilities, the main question raised by the Shabazz case was over its politics. When taking office, Lillehaug had talked about his passion for civil rights and equality in a justice system where "African Americans have suffered disproportionately." Commentator Ron Edwards says he became skeptical of that claim early, when the U.S. attorney's office brought a string of what he calls "Scottsboro-type cases," with large numbers of black defendants standing trial all at once. Urban Coalition head Yusef Mgeni had similar suspicions. "Bang, bang, bang right out of the block, everything on the docket seemed to pit one part of the African American community against the other. And they were always headline-grabbers." In addition to Shabazz, Mgeni and others cite these prosecutions:

§ Sharif Willis. After getting out of prison on a murder sentence, the Vice Lords leader worked to establish gangs as a political force under the banner United for Peace. His efforts got him on the front page of the Wall Street Journal; locally, they caught a lot of flack, especially from police. Willis often told people that he expected to be sent to prison again soon because of his high profile; in 1993, he was briefly jailed for a drug-related parole violation, but was let go when it turned out that a urine test might have been tampered with. In October 1994, he was arrested for pulling a gun on a gas station full of people in a dispute over gold-plated wheel spinners. Police testified that they'd also found 33 grams of crack in the car Willis and three other men had driven to the station.

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