Testifying For The State: Criminals

Prosecutors Say They're A Necessary Evil

The Defense Says They're Bought And Paid For

May 28, 2009|By Tricia Bishop | Tricia Bishop,tricia.bishop@baltsun.com

Damien West took the stand last week and aired his dirty, bloodstained laundry.

He talked about shooting the federal witness at the center of the current case, about dealing cocaine in Baltimore, about robbing random people and about being the chauffeur and protege for James Dinkins, who's on trial accused of drug conspiracy and multiple killings.

So far, West is the Department of Justice's best witness.

The federal government is relying on some serious criminals - murderers, drug dealers and gang members - to make its case in the double death penalty trial under way in Baltimore's U.S. District Court. In exchange for leniency, at least six "cooperating witnesses," most of whom haven't yet been sentenced for their crimes, are expected to testify against Dinkins, 37, and his two co-defendants, Melvin Gilbert, 34, and Darron Goods, 24.

That's raised concerns among defense attorneys, who say the cooperators have a strong motivation to lie. They point to a recent study out of the University of Arkansas that suggests one in two people will perjure themselves if given an incentive to do so.

"Their testimony is essentially bought and paid for," said John Wesley Hall Jr., president of the National Association of Criminal Defense Lawyers, who emphasized that he was speaking generally.

But prosecutors say the deals are necessary evils and the best way to get information about covert and illegal organizations. They work very hard with law enforcement agencies to "flip" people for just that reason.

"Often the people who are in the best position to be witnesses in a case are the people who themselves have been involved in the criminal activity," said Maryland U.S. Attorney Rod J. Rosenstein. He said his office works to develop cases against hardened criminals to give them the incentive to bargain.

Federal prosecutors often cut deals. In the first quarter of this year, 96 percent of federal cases garnered guilty pleas, according to preliminary data from the U.S. Sentencing Commission. That turns a lot of people into so-called cooperators - people like Marcus Pearson, who arranged the killing of a Baltimore witness. But he'll likely receive a 35-year sentence based on his plea agreement, which counted on his testimony against Patrick Byers Jr., who received four life terms.

If convicted, Dinkins and Gilbert, who is accused of murdering John Dowery, the federal witness West failed to kill, could be put to death, while Goods could receive a maximum life term. Put another way: There's a lot riding on the testimony of people with "reprehensibly low" credibility, according to one of Gilbert's attorneys.

"There's no DNA, no forensics, no bullet, no fiber, nothing to directly link Mr. Gilbert to these murders, not a fingerprint," lawyer Jonathan Van Hoven told the jury during opening statements. There's "nothing but the testimony of people you are not going to be able to trust or believe."

In the case of Dinkins et al., federal agencies paid $55,000 over several years to put up one witness, who, it turns out, was selling drugs on the side while under FBI protection. And the U.S. attorney's office has cut all sorts of deals in exchange for testimony, ensuring that some of the city's offenders will be released from prison far earlier in exchange for their testimony.

"The general goal is to work your way up the chain. You want to offer the best deal to the people who are lowest on the totem pole," Rosenstein said. But "sometimes somebody who's a major criminal player gets there first."

West pleaded guilty to second-degree attempted murder in state court with a recommendation that he serve 30 years, 15 of them suspended. He wasn't charged with any of the other crimes he confessed to, and he won't be - if he fully cooperates in this case. His plea agreement is held in a sort of suspension until he meets his end of the bargain.

That gives him a strong incentive to say whatever the government wants to hear, defense attorneys said. Dinkins' lawyers filed a motion to exclude cooperating witness testimony because it's "unreliable" and could cause "unfair prejudice" against their clients, and they asked for a hearing to determine their reliability.

Presiding U.S. District Judge J. Frederick Motz dismissed the request, saying it raised "ordinary questions of credibility." And in an interview, Rosenstein said investigators try to ensure credibility by independently verifying information or through recordings if possible.

"We never want to go into court in a position where we're relying entirely on the credibility of a witness who has credibility issues," Rosenstein said.

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