Informants’ Veracity a Mystery in Court

NEW YORK — The informant’s secretly recorded tapes--exhibits 7A and 7B, as introduced by the prosecution--incriminated the four “gangstas” charged with the attempted murder of a Bronx police captain.

The defendants listened closely as the tapes were played in a pretrial hearing. As the sound of their “confessions” filled the courtroom, recalled defense attorney Lynne Stewart, two of the defendants began laughing.

“Both of them said, ‘That’s not my voice,’ ” Stewart recalled. They were right: An FBI expert soon determined that all the “voices” belonged to informant Julio “Tuco” Caraballo, a career criminal with a rap sheet longer than the 10-minute tape.

The doctored tapes provided by the would-be impressionist led to the swift release of three of the defendants on the eve of their April trial. (The fourth was already doing time on an unrelated case.)

“No one has ever heard an informant story that comes up to this level,” said Stewart, attorney for one of the suspects. “This guy was a real grifter.”

But in the ever-expanding brotherhood of CIs--lawspeak for confidential informants--tales of sweet deals for bad guys with worse intent are fairly commonplace.

The legal world is rife with stories of informant abuse: the mob turncoat who fatally stabbed a coke dealer while under federal witness protection, or the crackhead crook who tried to ruin a decorated detective in exchange for a reduced sentence.

Altruism is rarely an informant’s motive; self-preservation generally works. Caraballo hoped to duck drug charges and a lengthy jail term when he went to work for police.

“There are many more informants than ever before,” said Gerry Lefcourt of the National Assn. of Criminal Defense Lawyers. “They cut deals to save themselves. And they have to make evidence up if they don’t have it.”

Why?

Draconian sentencing statutes with mandatory minimum terms have encouraged more criminals to testify, defense lawyers say. Judges have no room for discretionary sentences; they can only show leniency if the prosecutor requests it in a form letter called a 5K-1.

“Every informant wants that 5K-1 letter,” said veteran criminal attorney Ron Kuby.

Informants, in many ways, remain the lifeblood of law enforcement. Not even the harshest government critics advocate their elimination.

Informants helped take down the American Mafia, played key roles in infiltrating white supremacist groups and militias, and assisted in cracking the World Trade Center bombing case (where the informant collected a reported $1 million).

But some critics, including an ex-federal agent who handled scores of informants during a 25-year career, complain that the current system--which has grown into a multimillion-dollar government business--has become heavily flawed.

“Criminal justice has now turned into a snitch-ocracy,” Kuby said. “There is wholesale reliance on the worst people, with the meanest of motives, to secure justice for all.”

Kuby’s observation comes from experience. In 1995, Malcolm X’s daughter Qubilah Shabazz was arrested for allegedly hiring a hit man to kill Nation of Islam leader Louis Farrakhan in revenge for his alleged role in the 1965 assassination of her father.

Shabazz was implicated by informant Michael Fitzpatrick in return for a $45,000 payment. But Fitzpatrick had a history of his own.

Once a bomber with Rabbi Meir Kahane’s violent Jewish Defense League, Fitzpatrick turned on his cohorts, became an informant and was relocated to Minneapolis. Once there, he had three trips to rehab for cocaine abuse. He was facing drug charges when he opted to flip against Shabazz, a high school classmate.

Federal prosecutors offered 40 taped phone calls between Fitzpatrick and Shabazz. The defense noted that 38 of them were initiated by the informant. Entrapment, shouted Shabazz’s lawyer (and Kuby’s late partner), William Kunstler, describing Fitzpatrick as “evil and immoral.” Even the case prosecutor labeled Fitzpatrick a “very unsympathetic” witness.

Faced with Fitzpatrick’s credibility woes, prosecutors struck a plea bargain to keep him off the stand. In 1997 a judge simply dropped the charges against Shabazz.

Fitzpatrick’s story was no anomaly.

Nicholas Mitola was a New Jersey mobster who flipped in 1987, testifying against his cohorts in the Lucchese crime family. The Witness Protection Program moved him to Spokane, Wash.

Once west, Mitola returned to his old ways: gambling and dealing drugs. On Feb. 20, 1991, after a cocaine buy went bad, Mitola fatally stabbed a drug dealer and stuffed his body into a car trunk.

Mitola did barely 28 months for the slaying before his release on Aug. 13, 1997. He then opened an espresso company that never produced a single cup of joe, using it as cover for a $5-million-a-year gambling ring, authorities said.

In a nice twist, Mitola was indicted March 8 with the help of an informant--his estranged girlfriend.

In another humiliation for law enforcement, a Fortune 500 executive was shot by members of a federal task force’s SWAT team during an early-morning raid on his San Diego home in 1993. A confidential informant had told authorities that the 45-year-old executive had 5,000 pounds of cocaine in his garage, with four armed Colombians guarding the stash. There was no other corroborating evidence.

When the gun smoke cleared, the invading feds recovered nothing. The executive survived three gunshot wounds, sued the federal government and collected $2.75 million.

A more recent case involves Zaher Zahrey, a decorated undercover detective in Brooklyn with 11 years on the job. A drug-addicted serial mugger, looking to beat a life sentence, implicated him as a member of “The Supreme Crew,” a murderous drug gang.

Worse, a police investigator was captured on tape promising the criminal, Sidney “Bubba” Quick, “a very, very, very sweet deal” if he could further implicate the policeman.

Quick soon did. Based solely on his testimony, Zahrey was indicted on multiple corruption charges. He was jailed for six months pending trial, separated from his wife and three children.

A Brooklyn federal jury acquitted him in five minutes on June 27, 1997.

His career derailed, Zahrey now pounds a beat at the police tow pound and awaits resolution of a wrongful prosecution lawsuit against the city.

During depositions for the civil suit, several prosecutors and police officers acknowledged they had no training in the proper handling of an informant, according to Zahrey’s attorney, Joel Rudin.

Meanwhile, in April, former Black Panthers leader Elmer “Geronimo” Pratt received a $4.5-million settlement from the FBI and the city of Los Angeles for false imprisonment. Pratt, 53, spent 25 years in prison until his conviction for murdering a California schoolteacher was overturned in 1997.

Pratt accused the FBI and police of hiding exculpatory evidence. But the judge who finally granted Pratt a new trial cited the credibility of a key government witness, Julius Butler.

The witness, who claimed that Pratt confessed to him, was a police informant.

Mike Levine, a retired federal agent who spent a quarter-century handling informants, remembered the only instruction he ever received for dealing with the folks he now dismissively calls “rats.”

“Every undercover is told the same thing: Do not trust an informant. They are habitual, congenital liars,” Levine said. “And then an assistant U.S. attorney stands up and tells a jury, ‘Believe this witness.’ ”

In the Bronx case, Caraballo was the unlikeliest prosecution witness since Sammy “The Bull” Gravano and his 19 murders mesmerized courtrooms eight years ago. (Gravano’s recent arrest on Arizona drug charges scuttled a pending jury-tampering case involving mob boss John Gotti.)

Caraballo’s rap sheet was 36 pages long. It covered 30 years of crime and featured 26 convictions.

But he was willing to help solve the wounding of Bronx police Capt. Steven Plavnick, shot on Oct. 19, 1996, allegedly by gang members retaliating for the choking death of a Bronx man by a city police officer.

Caraballo, 55, was under drug indictment when he volunteered to identify Plavnick’s shooters in return for leniency.

“Then he went out and made tapes,” defense attorney Stewart says. “And I mean quite literally, he made them.”

According to Stewart, the prosecution case was inextricably tied to the tapes, which were unquestionably doctored. One tape was erased, a la Rosemary Woods, to delete a section that would have exonerated the suspects. On another tape, Caraballo did the voices for himself and two suspects.

Prosecutors proceeded anyway, right up until the FBI itself called the tapes bogus.

“Law enforcement thinks anybody who comes to them must be truthful. The informant’s been shown the error of his ways, and reformed,” Stewart said.

“Obviously not.”

Lefcourt’s national defense lawyers’ group has asked Congress to enact a corroboration statute, ensuring that defendants cannot be convicted solely on accomplice testimony.

That hasn’t happened yet, so cases like Detective Zahrey’s continue to reach trial despite a dearth of evidence.

The prosecution’s comments? Most often there is no comment when cases blow up in their faces, creating a public relations disaster.

The Bronx district attorney’s office did not return a call about the Caraballo case, although the maladroit snitch could face perjury charges. And ex-U.S. Attorney Andrew Maloney, whose office brokered the Gravano deal, was just as closemouthed when his star snitch was busted in Arizona for allegedly running a drug ring.

“He will not be speaking,” Maloney’s secretary said in a 10-second phone call, “about Sammy Gravano.”