‘Dirty cop’ tests limits of Fifth Amendment privilege - Albuquerque Journal

‘Dirty cop’ tests limits of Fifth Amendment privilege

(Journal File Photo)

Glenn Lewellen was “a dirty cop.” That’s a direct quote from an unusually blunt federal court opinion.

In his role as a narcotics officer with the Chicago Police Department, Lewellen busted a marijuana dealer named Saul Rodriguez, who agreed to work as an informant.

Rodriguez was handsomely rewarded for snitching. Over the years, Chicago Police paid him “more than $800,000” for his tips, according to court records reviewed by the Chicago Tribune.

Lewellen saw an easy way to make even more money than that. After Rodriguez identified drug dealers, Lewellen “would rob them. Often, Lewellen would pretend to conduct a traffic stop or arrest and would confiscate the dealers’ drugs and money to share with Rodriguez,” according to a 2016 opinion by the federal Seventh Circuit Court of Appeals.

With time their organization grew in size and audacity. Lewellen and Rodriguez brought in “at least thirteen more participants… Robbing drug dealers eventually escalated into kidnapping them for ransom money or even murdering them for money and drugs.”

Lewellen didn’t participate in the murders, but he made a lot of money from the crew’s activities. The government was able to trace $388,000 in cash purchases he made.

In 2009, the crew “was taken down in dramatic fashion,” the Tribune reported. They hatched a plan to steal 600 kilograms of cocaine from a rival gang. It turned out to be a sting. The Drug Enforcement Agency filmed the whole attempted heist.

Before everything went south, Lewellen allegedly abused his authority as a cop in other ways, too. Rodriguez, having switched his cooperation to the feds, “testified that he had planted drugs on at least one unwitting person at Lewellen’s behest,” according to a 2019 opinion by the Seventh Circuit.

One person convicted on the basis of Lewellen’s testimony, Refugio Ruiz-Cortez, served 10 years in prison before prosecutors moved to vacate his conviction. Once he got out, he filed suit against Lewellen for violating his civil rights.

During the civil trial, Lewellen testified in his own defense via video from prison. When asked if he had lied in his police reports and at Ruiz-Cortez’s trial, he refused to answer “under my Fifth Amendment.” But he added that, if not for his pending appeal, “I would love to testify.”

The jury found for Lewellen, concluding he had not violated Ruiz-Cortez’s constitutional rights. But his victory was short-lived. The appeals court ordered a new trial because Lewellen misrepresented the nature of the Fifth Amendment privilege and the trial judge failed to correct the misrepresentation.

A pending appeal is not a legitimate basis for invoking the Fifth Amendment. “The only valid reason to invoke the Fifth Amendment,” the appeals court explained, “is a reasonable fear that truthful answers may incriminate the witness.” Lewellen had a valid Fifth Amendment privilege only because he faced possible prosecution for perjury and filing a false police report.

Self-evidently, witnesses can’t be required to explain in detail exactly why answering a question truthfully might subject them to a criminal prosecution. That would defeat the purpose of the Fifth Amendment.

But a witness, or the witness’s lawyer, must be able to articulate some plausible theory by which a truthful answer might potentially lead to prosecution. Saying “I have an appeal pending” doesn’t cut it. It doesn’t come close.

In America, a person under criminal suspicion has a constitutional right to remain silent, as the Miranda warnings promise. In criminal cases, a suspect’s silence cannot be used as evidence of guilt.

But Ruiz-Cortez’s lawsuit was a civil case. And in civil cases, the federal Constitution allows the jury to assume that when a witness invokes the Fifth Amendment instead of answering a question, it’s because honesty would be a confession. The judge in Ruiz-Cortez’s case should have instructed the jury on that crucial point but didn’t, necessitating a new trial.

All this is particularly relevant these days because we’ve had such a raft of public figures taking the fifth. No fewer than 32 witnesses did so before the January 6th Committee, according to Talking Points Memo’s tally. I’m sure you can think of other recent examples.

A person who asserts their Fifth Amendment privilege against answering a question under oath is saying, “Any truthful answer I give could be used as evidence against me in a criminal prosecution.” When a person says that about themselves, we should believe them.

As for the “dirty cop” Glenn Lewellen, the judge presiding over his criminal case gave him a shorter sentence than federal sentencing guidelines indicated, then ordered his early release after he served a little over half of it. She was concerned he might catch COVID if he stayed behind bars.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com.

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