Get Out of Jail Free

In drug- or gang-related cases, one of the favorite weapons of prosecutors is confidential informants like Johnny Edwards. Trouble is, a lot of them will say anything to get themselves out of the hot seat--and continue committing crimes while they're turn

Weeks later, in August 1995, Herron wrote a letter to Hennepin County District Court Judge Jack Nordby claiming that innocent or guilty, Reggie Ferguson was working to turn his life around. The letter was one of many sent to Nordby by people urging that Ferguson's bail be reduced from $375,000. The bail was lowered to $25,000.

Police once again blasted Herron, an African-American whose 8th Ward encompasses the neighborhood where the Ferguson family lives.

"How can the office of the City Council be used to influence judicial decisions? Is that ethical?" Sgt. Tom Hussman was quoted in the Star Tribune as asking. "I don't think so."

Hussman, ironically, was the officer who interviewed Edwards after Edwards called from jail looking to make a deal. Several months earlier, Hussman had been disciplined by the MPD Internal Affairs Division for insubordination and for mishandling evidence and suspects' possessions. During its investigation of Hussman, IAD heard complaints from his superiors and co-workers that he caused problems in his unit by mistreating witnesses and suspects, by refusing to cooperate with other cops, and by ignoring policies that were designed to ensure the integrity of investigations. He later resigned from the department.

It was Hussman who asked Edwards about Helen Ferguson and Brian Herron.

"I witnessed Helen saying to Brian that you have to get my baby out of this," Edwards answered. "And Brian said, 'You know I'm doing what I gotta do, and I wrote the letter.'"

The practice of using informants is as old as law enforcement itself. But as it becomes more pressing for police and prosecutors to appear to be doing something vigilant and meaningful with regard to gangs, deals like the one given to Edwards are becoming increasingly common. Rarely are the star witnesses model citizens. Police and prosecutors even have a saying about it: Swans don't swim in sewers.

They don't like having to cut deals with crooks or rely on unsavory witnesses, they say, but the fear of retaliation is so palpable in gang cases that witnesses won't testify unless they're protected. They say they scrutinize each tip to make sure it'll stand up in court.

But a recent study published by the National Law Journal found that a drastic increase in the use of informants nationwide threatens "the rights of innocent people, as well as the integrity of the courts." Rules governing who can be an informant and how they can operate are routinely flouted by investigators, the report found.

In 1993, police relied on a single informant as the basis for requesting a search warrant in 71 percent of cases studied by the Journal, versus 24 percent in 1980. In 1980, 46 percent of warrants of all kinds relied on an anonymous informant; in 1993, the figure had risen to 92 percent. In none of the examples examined did the judge authorizing the warrant ask police to produce their source.

And even prosecutors agree that the more frequently informants are used, the greater the potential for abuse. Examples of this abound: In 1992, more than 30 postal workers were arrested for drug trafficking in Ohio based on the word of a snitch who later was found to have fabricated his claims; in the last decade the convictions of at least seven death row inmates in southern and Sun Belt states were reversed because informants had lied, police had pressured them to create stories, and prosecutors had failed to disclose payments to snitches.

California has recently experienced two prominent examples of abuses perpetrated because of crooked informants. In a 1992 case, officials raided a ranch identified by a snitch as a pot farm. The property owner was killed during the raid, which failed to uncover any illicit drugs. A few years before that, prosecutors in Los Angeles were forced to review more than 200 convictions after a jailhouse informant told a 60 Minutes camera crew that it's easy for criminals to fabricate credible tales by calling prosecutors on the phone from jail and posing as a police officer to get unpublicized details about an investigation. Closer to home, the U.S. Attorney's office got bad publicity across the country for relying on a dubious informant in the 1995 Qubilah Shabazz case.

Yet even as the inherent corruption in using paid confidential informants becomes clearer, state and federal officials are working to make it easier to use them. In recent days, President Clinton hailed the creation of a Justice Department handbook for prosecuting gang members. The president promises the document will help fight gangs by making it easier for authorities to "protect witnesses." The blueprint is an outgrowth of Clinton's pre-election bid for the 1996 Anti-Gang and Youth Violence Control Act, which would have created a national gang tracking network and stiffer penalties for gang-related crimes.

Many prosecutors already rely on such manuals. A Los Angeles County version, for example, advises attorneys to view voir dire, the process during which potential jurors are quizzed about their preconceptions, as an opportunity to sow seeds that help the state's case.

"It is a time to educate a jury about the facts of your gang case. Tell them it's a gang case. Stress the particular gang facts," the manual suggests. "Whatever questions you ask, keep in mind that you are painting a picture of the gang case for the jurors as much as you are trying to find their prejudices." The manual also suggests questioning potential jurors for such "prejudices" as whether they live in the neighborhood where the gang in question operates.

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