Casualties of War

THE CLINTON YEARS are one Republican déjà vu after another. Now, once again, comes Weed & Seed, the Bush-era PR offensive in the never-ending war on drugs. According to reliable sources, Minneapolis very likely will be among a handful of U.S. cities in which a major W&S sweep is announced by the Justice Department a month or so from now. It will reportedly center on the Phillips neighborhood and target 150 or so drug dealers. The prosecutions are to be handled entirely through the U.S. Attorney's office, which is said to be bringing in a special prosecutor and a special field operations director--both of them African-American--expressly for this enterprise.

Mike Freeman and other city and county authorities are out of the loop, or so the story goes. The feds supposedly wish to move in and out with dispatch; it's said that they hope to secure convictions in the Weed & Seed prosecutions within six months. Word of the plan has been rippling through local African-American circles for a few days now. Apparently the officials involved have taken the initiative in trying to line up opinion leaders on the correct side of what looks to be a messy and controversial endeavor.

A number of questions come to mind. Such as: Why Minneapolis? The rumor is that a total of seven to nine American cities will be involved in this venture, and ours is scarcely one of the seven to nine most afflicted urban areas in the country. But it's a felicitous choice for other reasons. A successful blitz could do much to raise the stock of David Lillehaug, the U.S. Attorney with two left feet--who, we must remember, still enjoys a powerful patron in the Clinton gang's former ambassador to Japan, Fritz Mondale. By most accounts, Lillehaug would like to be a federal judge someday. A splashy federal police action coordinated from his office would not sully his prospects.

Minneapolis has still more to recommend it for a window-display drug sweep. There is our pliant African-American mayor, who is sure to lend her hearty assent to any such project regardless of the manner in which it's executed. There is our reputation as a good-government town, liberal and forward-thinking, which could help assuage any lingering murmurs from civil-liberties hobbyists about these sorts of actions. (That is admittedly a very minor concern, if it's a concern at all by now.) Last but not least, there is the proven predilection of local juries to convict young black male defendants on nearly any charge anytime. Demographically, the jury pool here can't be beat, if you know what I mean. I can't imagine that Justice Department officials would regard it as anything but a very opportune venue for a quick series of what amount to show trials.

And so, if all goes according to plan, 150 or so crack vendors--the great preponderance of them street-level hustlers; clerks in the drug trade, really--will be put behind bars, no doubt accompanied by a great many "associates" who could never be convicted under any reasonable standard of proof. On the latter point, there now exist manuals for the more dim-witted prosecutors across the land, spelling out what common sense dictates: The very terms "drugs" and "gangs" are typically enough to predispose juries to convict, so one ought to pull out all the stops to get those terms in front of the jury as often as possible. That is precisely how Hennepin County prosecutors secured convictions in the recent trials of the Ferguson brothers, the alleged southside gang leaders--by introducing testimony from a former associate of theirs to buttress an otherwise flimsy case. Whatever you think of the Ferguson clan, it's hard to credit the official case against them in the shooting of Ken Phillips (see Beth Hawkins's cover story, 1/22). And if you think the state was entitled to put them away on that pretext as a matter of expediency, then you are a believer in the essential premise of a police state.

Prosecutors failed to win a conviction in the case of Obuatawan Holt,
a half-brother to the Fergusons, in large part because Holt's attorney was able to look into the background of the main state informant who had been used in the previous Ferguson trials, Johnny Edwards. Edwards's identity was kept from defense attorneys in previous trials in the name of safeguarding an endangered witness. That little gesture affords a window on the many ways in which the state is trying--successfully--to erode basic due-process rights in the name of combatting the scourge of drugs and gangs.

I have before me a November 1996 Justice Department report entitled Preventing Gang- and Drug-Related Witness Intimidation. Obviously most of us can agree that there are cases in which the threat of reprisal makes it necessary for the state to safeguard witnesses. Just as obviously, such measures can't be used promiscuously without doing violence to the right of the accused to face his or her accusers. Tellingly, the report opens by making a distinction between "overt intimidation" and "implicit intimidation, where there is a real but unexpressed threat of harm, as when rampant gang violence creates a community-wide atmosphere of fear" (emphasis mine).

Let us speak plainly. If you buy this distinction, the state is entitled to a presumption of extraordinary circumstances (in effect, a presumption of guilt) in nearly any case where the defendant is a city-dwelling black man under 40 or 45. In concrete terms, this means prohibitively high bail as a matter of course; limited discovery proceedings, if any, lest the defendant learn the identity of witnesses; and a system of compensation or other considerations for state witnesses in the guise of extending protection to them. The last point is in itself a powerful incentive for informants to make up testimony, as case after case has proven. We approach a state of martial law, and openly corrupt martial law at that.

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