The Morning After 

The district attorney challenges the police department's use of confidential informants having sex with prostitutes

The district attorney challenges the police department's use of confidential informants having sex with prostitutes

Last week, District Attorney General Torry Johnson had a secondhand look at how the Metro Police Department cracks down on organized prostitution. In his office, he viewed a videotape, included as evidence in a routine criminal case, showing a graphic sexual threesome involving a paid police informant. Shortly afterward, the city's top prosecutor placed a call to police brass.

"I told them I felt this was not something that was advantageous from a prosecution standpoint," Johnson says of conversations with Police Chief Ronal Serpas and Assistant Chief Steve Anderson. "And I recommended that it should not be done."

But for now at least, the Metro Police Department vigorously defends its controversial use of confidential informants, even as the practice has come under fire from outside police experts and, now, the city's top prosecutor.

"We will meet with General Johnson and discuss his concerns," says police spokesman Don Aaron. "He's our partner in the criminal justice system. But with that said, these confidential informants are going into businesses that are conducting, we believe, overt illegal activity. Through the use of these informants, these businesses have not been able to tell that they are the targets of law enforcement until enforcement has been taken."

For years, the Metro Police Department has been using confidential informants to meet with prostitutes and collect incriminating evidence. Many times, an informant will flirt with a prostitute, discuss sex for money and then concoct an excuse to leave. Other times, though, to build an open-and-shut case, the CIs will engage in sexual activity with some of the same women the police are investigating. Confidential informants equipped with hidden recording devices have met with prostitutes and received oral and manual sex while police listen in. They've also groped female employees of establishments being investigated. In at least one case, a confidential informant engaged in intercourse with a woman whom the police already knew was a prostitute. CIs are private citizens, and most have police records themselves.

With full knowledge of the Metro Legal Department, police have been employing informants since 2001 to help build civil cases against nearly 40 businesses. Nearly all of them have closed down. But when the cop shop uses CIs to have sex with women it is investigating, it can hinder contested criminal cases against prostitutes and their employers, Johnson says.

"I'm not going to say we can't file criminal charges against these businesses," says Johnson, who reviewed the department's use of informants after the Scene chronicled the practice last week. "It's just not ideal. A defense attorney can tell a jury, 'Is this how you want your tax dollars to be spent?' "

But Captain Toddy Henry, head of the police department's investigations division, says that the DA's office has been very successful prosecuting those cases. In 2002, for example, the vice division brought 352 prostitution charges in which paid confidential informants had "skin-on-skin" contact with suspected prostitutes. The conviction rate in those cases was over 90 percent.

Of course, in many of those cases defendants copped a quick plea without bringing the controversial evidence into question. But in a recent contested criminal case, a defense lawyer questioned the way police detectives collected the evidence. Shortly afterward, the district attorney became aware of how informants are being used.

"It certainly wouldn't surprise me if we resolved or settled these cases where it hasn't been an issue," Johnson says of cases in which the controversial practice is never exposed. "We can't tell police how to investigate these cases, but we just think it's not a good idea and it's not necessary."

Don Aaron, though, says that the police department has to use unusual methods to investigate the city's increasingly cunning fronts for prostitution. "The procedure may seem distasteful, but we have shown that it is necessary to show the evidence of a pattern of criminal activity."

Johnson adds that regardless of the legal implications of using CIs to have sex with prostitutes, there's the broader question of appearances. "When we're trying to combat illegal activity, there's no question the police and confidential informants have to present themselves as drug dealers and drug users," Johnson says. "But there's a line between pretending and actually doing, and there's always been that line. It raises questions if the state of Tennessee wants to use evidence in a prostitution case that's very, very graphic and the CI is in the middle of it."

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