By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
The problem, according to critics, is that the system creates powerful incentives for informants to manufacture or embellish testimony. In the federal courts, where informants are most frequently used, defendants often face long mandatory minimum sentences if they don't turn state's evidence; as a result, says Minneapolis attorney Demetrius Clemons, fully half the cases he tries now involve informants. "You can get stopped with a one-twentieth-of-a-gram rock in your pocket and it's a felony. Fifty grams or more is a minimum of 10 years, and with priors it can get enhanced to 20 to life. You'd tell on your mama."
Recently, attorneys say, county prosecutors have also turned increasingly to snitches. Mary Moriarty, Dameion Robinson's public defender, says in virtually every nonproperty case she's defended recently where more than one person was charged, the county attorney's office has sought to turn at least one defendant into an informant. She says cases often come down to who decides to talk first: "The person who's trying to make a deal has every reason to maximize the other person's role and to minimize their own because they're trying to minimize their own potential sentence. I mean, who wouldn't?"
One reason for the push to create snitches is the political climate, says Peter Erlinder, a professor of constitutional criminal law at William Mitchell College. Prosecutors, he says, are under pressure to rack up convictions fast, especially in gang-related cases. "And the more it happens, the more it appears necessary," he says. "The difficulty is that there's no limits and no structure."
One limitation on the use of informants was recently lifted by the Minnesota Supreme Court. Last year, justices ruled that when witnesses in gang cases refuse to testify, prosecutors may introduce into evidence statements the witnesses made to investigators outside the courtroom. That, civil libertarians complain, undermines defendants' constitutional right to cross-examine their accusers. And while such loopholes may appear justifiable in exceptional cases, Erlinder argues, "there's no guarantee that they will stay confined to gangs. So the question is, do we want to have a system of keeping peace based on the use of informants and snitches? If the answer is yes, just look to the old Soviet Union."
Many politicians, however, don't share those fears. When Hennepin County Attorney Mike Freeman talks about cracking down on gang-related crime, he doesn't even use the word "informant." Instead, he extols the importance of making it safer for victims and witnesses to testify. In 1994--the year he first ran for governor--Freeman went to the state Legislature asking for a $1 million witness-protection fund, and for rules helping prosecutors to move witnesses receiving welfare from one county to another. "We didn't need these programs 10 years ago," Freeman told reporters at the time, "but we need them now, when crime is becoming more violent."
The Legislature eventually did create a Witness and Victim Protection Fund, though it resolved to spend far less than Freeman had hoped. Lawmakers last year approved $100,000 for the statewide fund, plus an additional $50,000 a year for gang-related cases in 1997 and 1998. A Freeman-supported bill to appropriate additional money is making its way through this year's legislative session.
Freeman is also pushing lawmakers to copy the federal system's special tools for gang prosecutions. Some of the bills legislators have introduced at his request in recent weeks would create stiffer mandatory penalties for gang-related crimes, loosen the rules governing what crimes can be judged gang-related, create a mandatory minimum sentence for anyone found guilty of using a weapon to threaten witnesses, and make it easier to prosecute witnesses for protecting gang members.
"You can tell that it's an election year and county attorneys are running for governor," quips Minneapolis DFL Rep. Len Biernat, who is sponsoring one of the bills.
Freeman's efforts have garnered attention on the national level, landing him on a U.S. Department of Justice panel studying gang-related prosecutions. Hennepin County's witness-protection efforts were outlined in a recent federal "how-to" manual for securing better witness cooperation in gang cases. While the Justice Department report makes no note of any civil-liberties concerns raised by the increased use of informants, it does contain a passage cautioning that "today's witness is often tomorrow's defendant." It tells prosecutors to structure witness-protection programs so as to avoid liability for anything that happens to protected witnesses, and for any crimes they may commit while receiving government support. In some places, the report notes, prosecutors have dealt with witnesses trashing their government-paid hotel rooms and using them for prostitution.
The report does not address what county attorneys should do with a witness who is implicated in violent crimes while under protection. But according to Freeman's deputy, Diamond, the answer is obvious: Informants who run afoul of the law are dealt with just like any other criminal suspect. "They're still responsible for their behavior," he asserts. "The understanding is that they'll be prosecuted just like anyone else."
After Edwards's arrest last August, Hennepin County prosecutors--again facing a conflict of interest--sent his case to their Ramsey County counterparts. And again, the prosecutors there decided that charges against Edwards wouldn't stand up in court. The shooting victims, Assistant Ramsey County Attorney Elizabeth Beltaos wrote in a letter explaining the decision, all identified Edwards as the shooter's accomplice. But they told conflicting stories about why they were at the scene in the first place. Everyone involved, she noted, had a criminal record and thus didn't make for sterling witnesses.