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Prosecutors work more closely with police in drug cases

TRIBUNE PHOTO: JAIME VALDEZ - Prosecutors and defense attorneys are wrestling with the use of paid informants in some trials.Multnomah County District Attorney Rod Underhill has assigned Deputy DA Russ Ratto to work with police to help ensure that the right suspects get convicted — and those convictions stick.

Portland criminal defense attorney Bear Wilner-Nugent says if Underhill is serious about heading off wrongful convictions, the DA might want to clean up the way police use informants.

Wilner-Nugent two years ago defended Eddie Davis, accused by police of dealing cocaine. Virtually the entire police case, Wilner-Nugent says, consisted of their informant, Glasker Frank Jackson, making a buy from Davis. Jackson was set to testify against Davis except, according to Wilner-Nugent, the original discovery documents he received from prosecutors didn’t even provide the name of the informant. Prosecutors wanted to settle without giving up Jackson’s name.


False confessions

Wilner-Nugent eventually was provided Jackson’s name and he sent a private investigator around to Jackson’s listed Southeast Portland home. The house was vacant, with a “For Sale” sign out front. Jackson had moved to Georgia, Wilner-Nugent discovered. Among other things, that put him out of compliance with state laws that require registered sex offenders to notify authorities when they change addresses. Jackson, it turns out, was a registered sex offender, and also possessed a 31-year history of convictions that included alien smuggling and sexual battery.

When Wilner-Nugent brought all this to the attention of prosecutors, the charges against

Davis were dismissed. In addition, the DA agreed to dismiss all pending cases in which Jackson was used as an informant and place Jackson on a list of informants it won’t use anymore.

Senior Deputy District Attorney Jim Hayden says that virtually all informants have criminal records, so determining which are credible enough to take to trial isn’t easy. Hayden’s takeaway from the Eddie Davis case is that prosecutors need to have more detailed conversations with police about each informant. And maybe some informants need what Hayden calls “better babysitting.”

Deputy DA Ratto says the fact that prosecutors threw out cases once they learned of Jackson’s history in a way proves the system is working. Ratto says developing new rules on how the prosecutors and police use informants will be among his most difficult tasks.

Wilner-Nugent’s takeaway from the Davis case? Police shouldn’t be allowed to pay confidential informants for testimony, even modest amounts, and shouldn’t use informants on fishing expeditions. If an informant is involved in a crime and wants to trade testimony for leniency, fine, says the attorney. But in the Eddie Davis case, he says, police were not acting to solve a crime.

“Police put an unreliable criminal in the field, paid him and asked him essentially to solicit people to commit crimes,” Wilner-Nugent says. “This is manufacturing new crime.”

Eliminate informant buys, says Deputy DA Ryan Lufkin, and police will be arresting very few drug dealers because stings using informants is about the only way to make those cases. They are often known to the dealers and others on the street and trusted in a way undercover police officers attempting to make buys never will be.

Different crimes, different rules?

Most major crimes have witnesses or evidence trails, according to Lufkin. But gang and drug crimes are different.

“You’re actively investigating people who are trying to avoid police contact on a day-to-day basis,” Lufkin says. “Realistically, the way you do that is soliciting informants.”

Informants willing to make buys and testify — usually in return for reduced sentences on their own charges or for cash — are only one of three types of informants police use, according to Lufkin.

An anonymous informant, for instance someone calling in about a drug house on his or her block, is common but not very useful, Lufkin says. Police can’t get a search warrant based on a tip from somebody who won’t come forward.

Confidential informants — Jackson before his name was released to Wilner-Nugent — are a second category. Because of safety concerns or because they are being used in multiple investigations, only the police know who they are. A confidential informant’s drug buy might be all the police need to get a warrant to search a dealer’s home, if prosecutors provide evidence to prove the informant is reliable and can be corroborated. Even the judge issuing the warrant won’t know the informant’s name.

If police find what they are looking for in the dealer’s home, the informant fades away, never to appear in court, likely to be used again in a buy.

But Glasker Frank Jackson, eventually, was from a third category, a testifying informant — scheduled to appear in court, with his name provided to Wilner-Nugent, Eddie Davis’ defense attorney. Testifying informants need to be especially reliable, says Lufkin, because they will be cross-examined in court.

Except Glasker Frank Jackson wasn’t. And as part of their effort to reduce wrongful convictions, Multnomah County prosecutors are about to change the way they use informants in hopes they can eliminate similar cases in the future.

Until now, testifying informants who make drug buys have enabled Portland police to make quick arrests of suspected drug dealers. Prosecutors often do not know anything about the informant until police have finished their investigation and handed over the case.

Going forward, prosecutors are going to be involved with police early in the investigation, Lufkin says. So if police want to use an informant to buy drugs, prosecutors will get a chance to look at the informant’s background ahead of time.

“We’re saying let’s make sure before we even do a case that we’re comfortable with the informant,” Lufkin says. “That would perhaps allay some of the concerns.”

Lufkin says the new policy is not a reaction to Glasker Frank Jackson or any one case, just part of the DA’s move toward trying to avoid bad prosecutions. But it won’t put a halt to the use of informants.

“We have businesses in downtown Portland plagued with chronic drug dealing,” Lufkin says. “In order to investigate and remove and arrest those persons doing the drug dealing, you need to actually do something. And the thing that actually accomplishes the goal is, ‘Let’s see if this guy is selling drugs, let’s try and buy drugs from him.’ “

Portland criminal defense attorney Chris O’Connor says Multnomah County prosecutors are ignoring what attorneys call exculpatory responsibilities in their eagerness to use confidential informants. By law, even prosecutors and police are required to look for information that will hurt their case, says O’Connor, and that includes revealing information that might damage the credibility of their informants.

“They don’t do it,” O’Connor says.

In his view, the police often have information on an informant that they keep from the DA, and prosecutors often don’t ask for everything. That, O’Connor says, is the lesson to be learned from the Eddie Davis case.

Lufkin calls the charge “unfounded speculation” and says it would be “a serious problem” if police withheld from prosecutors damaging information about an informant. Regardless, Lufkin says, the new policies should ensure that prosecutors themselves have vetted informants before they are used.

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