Are "Bad Guys" Good Witnesses?

By Michael S. Serrill

De Lorean's acquittal renews doubts about criminals as accusers

During the Los Angeles trial that ended with John De Lorean's acquittal on charges of drug conspiracy and possession, a striking tableau could be seen. At the defendant's table sat De Lorean, tall and handsome, boyish despite his 59 years, as smooth and sleek as the sports car he briefly manufactured. In the witness chair sat his key accuser, James Timothy Hoffman, 43, a hulking, 250-lb. convicted drug dealer and admitted perjurer whose latest job was as a professional informer, setting up his friends and acquaintances for Government stings. When the obese Hoffman appeared in the videotapes that were the chief evidence against De Lorean, he was almost always eating.

The contrast was obviously not lost on the jury. Indeed, the failure of the Government's prosecution of De Lorean called into question not only its handling of undercover operations but also a separate, though often related, procedure: the use of criminals as witnesses. The De Lorean case was the Government's third defeat in the past four months in major trials involving witnesses with unsavory backgrounds. Earlier this month, in a Cook County, Ill., case that was part of the Greylord investigation of judicial corruption, Judge John G. Laurie was cleared of bribery and other charges in part because the jury did not believe testimony against him by several corrupt witnesses, including two police officers. And the first trial of Nevada Federal Judge Harry Claiborne ended in a hung jury in April because the jurors gave little credence to the testimony of Joe Conforte, a thrice-convicted felon, former international fugitive and once owner of the Silver State's most notorious brothel. The raspy-voiced, Sicilian-born Conforte resembled a character in a Mario Puzo novel as he related how he had given Judge Claiborne $85,000 in bribes to fix cases for him. Defense Attorney Oscar Goodman tore his testimony apart, offering evidence that Conforte was wrong on crucial dates and times. Claiborne was later retried--with Conforte conspicuously absent--and was convicted on tax charges.

Despite these expensive and humiliating defeats, there is little likelihood that the Government will change its investigative ways. Without what one lawman calls "creeps as witnesses," it would be impossible to solve most drug, organized-crime and official-corruption cases. Dan Webb, U.S. attorney in Chicago, for instance, seldom tries a major criminal case in which some witnesses do not "carry baggage"--have criminal records. Webb's prosecutors may have set a record for the use of bad-guy witnesses, when in 1982 they paraded some 50 criminals into court to testify against ten police officers charged with taking bribes to protect the drug trade. "They were the dirtiest you could put on the stand," recalls Webb. "Their backgrounds were as unsavory as they come -- rapes, murders, dope transactions." Despite loud protests from defense attorneys that the witnesses were "born liars" and their appearance a "farce," all the officers were convicted.

But as the Claiborne case proved, convictions can rarely be won on the basis of such testimony. "Corroboration is the key," says Stephen Trott, chief of the Justice Department's criminal division. "Without corroboration, you're probably dead in the water." In the De Lorean case, the prosecution thought it had plenty of corroboration: dozens of audio-and videotapes in which the industrialist seemed to agree to invest in a 220-lb. cocaine deal. But the jurors indicated in interviews after the acquittal that they regarded the tapes as inconclusive; they were more concerned about the credibility of the witnesses and their actions in setting up the sting. While Hoffman was unflappable during his 18 days on the witness stand, the impact of his accusations was dissipated by several disclosures: that he had erased some audiotapes that may have contained conversations with De Lorean; that he at one point asked for a cut of any proceeds from the De Lorean drug bust; and that months before the Government began its sting operation in earnest, Hoffman allegedly told a federal agent, "I'm going to get John De Lorean for you guys."

Judge Robert Takasugi added to the jurors' skepticism when in a final instruction he told them to look carefully at Hoffman's testimony. "The judge told us to weigh his background," said |one juror. "I did, and I discarded a lot." Add to this a stumbling performance by the Government's own agents, one of whom admitted destroying or altering some of his notes on the case, and the outcome was not surprising. De Lorean was also helped by his clean record. Most jurors concluded that the automaker had been lured by Hoffman into a crime he was not predisposed to commit--the legal definition, loosely, of entrapment. In many drug cases the defendants have long criminal histories, making any claims that they were gulled ring hollow.

De Lorean Defense Attorney Howard Weitzman took the occasion of his victory to denounce Government sting operations generally and the use of operatives like James Hoffman in particular. The jurors, Weitzman said, felt Hoffman was a "liar" and were "offended" by the fact that he was paid about $180,000 in "expenses" for his participation in the De Lorean and other investigations. While criminal witnesses are a "necessary evil," Weitzman believes "they have gotten out of hand; these people are given a license to fabricate and invent."

Prosecutors insist that in the unraveling of high-level criminal conspiracies, it usually takes a scoundrel to catch one. Says H. Richard Uviller, a criminal-law professor at Columbia University and former Manhattan prosecutor: "You'd love to have witnesses who are all picked for their virtue and sterling characters, but it doesn't always happen that way. And so you take them where you find them." Assistant U.S. Attorney Robert Perry made the same point to the De Lorean jury in the words of an old lawyers' axiom: "For a plot hatched in hell, don't expect angels for witnesses." --By Michael S. Serrill. Reported by Richard Woodbury/Los Angeles and John E. Yang/Washington

With reporting by Richard Woodbury/Los Angeles, John E. Yang/Washington