Reporting a Crime, Then Dying for It

GREEN BAY, Wis. —  His voice was tight with fear.

“I haven’t slept much in the last couple of days,” Tom Monfils told a police officer in a taped phone call. “This is not a nice guy. He’s a biker type. . . . If he gets hold of this [tape of an earlier call], I might not come home some night.”

His prediction proved to be chillingly accurate.

The week before, Monfils, a 35-year-old paper mill worker, had phoned an anonymous tip to police about thefts by a co-worker.

When the culprit, Keith Kutska, returned to work, he let it be known that he intended to find out who had turned him in. And when he did, Kutska said, he would get even.

Growing more scared by the day, Monfils called the Green Bay Police Department three more times and pleaded with officers, including the deputy chief, to keep secret the tape of his first call. They assured him they would take care of the matter.

But they didn’t. On a Friday afternoon in November 1992, an officer handed over a copy of the tape to Kutska, who took it to work the next day.

Now Monfils’ words sound a warning to police departments nationwide who hear from ordinary citizens reporting a crime.

Monfils was last seen at his control room post at 7:30 a.m. that Saturday. His wife, frantic when he did not return home, demanded a search of the huge paper plant that loomed over the Fox River. Searchers finally found Monfils’ body at the bottom of a two-story-high pulp vat; a rope, twisted through a 40-pound weight, had been wrapped around his neck.

The murder shocked this conservative town like none before.

“This one hit with a double punch,” said Mike Blecha, an editorial writer for the Green Bay Press-Gazette. “It was probably the worst crime in this city’s history. And people were angry both at the [labor] union and at the Police Department for the slipshod way they handled this.”

It also led to a precedent-setting verdict that held the police liable for endangering the life of a citizen who reports a crime tip.

The case of Monfils vs. City of Green Bay closed a loophole in the law that many would not have guessed existed in the first place.

Americans have no right to protection from the police, the courts have said, even when officers know a person is in danger.

And they have no assurance that their calls to police will be kept secret. Policies at local departments are sometimes unclear, even to their own officers.

In Wisconsin, the Open Records Act pledges that public agencies, including police, will make their files and records available to the public. There are many exceptions, however. Police are obliged to maintain secrecy once an official crime investigation begins.

But Monfils’ anonymous report of a theft in progress had not triggered a police investigation, only a call to the plant’s security staff. For that reason, an officer in the department’s taping unit--who had not spoken with Monfils--decided the tape could be released.

Public outrage over Monfils’ death prompted important changes in the law. The Wisconsin Legislature quickly amended its open-records act. The “Monfils Law” tightened security for records whose release could pose a danger to someone. And the federal court ruling that arose from his family’s lawsuit said that police can be forced to pay damages for endangering the life of an anonymous informer.

The Green Bay police did not kill Monfils, but they “created the danger” that led to his death, said the U.S. 7th Circuit Court of Appeals. At a minimum, Americans have “a right not to be placed at harm” by their own police force, it concluded.

System Is Not Perfect

As a general matter, police say, they always strive to protect informers. California law, for example, says that crime reports, if released, should not include “the name, address, phone number and statements of a confidential witness [or] information that would endanger a witness.”

But as the Monfils murder and other cases show, the system is not perfect.

Last December, a San Bernardino County jury handed down a $5-million verdict against the city of Ontario over the death of 16-year-old Christopher Mancha.

In November 1992, the same month Monfils was murdered, Ontario police went to the home of Sandra Mancha and her son to investigate a burglary. When pressed, Christopher admitted he had seen a familiar car in front of the house.

After a lab technician promised him confidentiality, Christopher said it was the car of Richard Salazar, a neighborhood gang member. When a detective later questioned Salazar, she told him Christopher had identified him as the burglar.

“Within 24 hours, he was dead,” said Marina R. Dini, a Los Angeles lawyer who represented the family. The boy was shot five times and run over by a car; Salazar was convicted of the crime and sent to prison for life.

In the Mancha lawsuit, Dini and her partner, Robert Bastian, stressed that the police had promised they would keep Christopher’s crime report secret. When they didn’t, they failed even to warn the young man of the impending danger, the lawyers added.

“This was a person who came forward reluctantly to report a crime and lost his life because of it,” Dini said. The verdict is now under appeal.

In October, a jury in Washington handed down a $98-million verdict--the largest in the district’s history--in the death of a police informer. Eric Butera, 31, had told police he might be able to get information on a suspect in the notorious 1997 Starbucks case, a triple murder committed in a Georgetown coffeehouse.

Police arranged to have Butera buy drugs in a crack house. But rather than watch over him, they dropped him off two blocks away. Minutes later, Butera was mugged and killed.

“They signed Mr. Butera’s death warrant when they dropped him off that night,” said Peter Grenier, a lawyer for Terry Butera, Eric’s mother. The District of Columbia is appealing the verdict.

A similar lawsuit is pending in Orange County against the city of Brea over the death of 17-year-old Chad MacDonald. He had worked briefly as an informant for the police and was later killed outside a Norwalk drug house.

Cindy MacDonald, his mother, sued the police and claims his role as an informant led to his death. Lawyers for the city say the youth was no longer working for police when he was killed. The case has yet to be tried.

In Los Angeles, ordinary calls to police precincts are not recorded, said David Lee, an analyst in the LAPD’s discovery unit. But, he added, “if you call 911, that call is recorded. And it can be traced.” However, Lee said, “if the accused requests a copy of the 911 tape, the police department can withhold it.”

But the department can’t always keep such calls secret.

“There is a risk when you bring an issue forward,” said Sgt. Dennis P. Zine of the LAPD. “In this country, the accused has a right to confront his accuser. They have a right to get some information about who is accusing them.”

Zine, secretary of the Los Angeles Police Protective League, stressed that officers will also seek to protect citizen-informers. “We need the public’s cooperation,” Zine explained.

Monfils did not know the Green Bay Police Department recorded all its calls. He said he had never before called to report a crime. And no one knows just why he decided to report the theft of a 20-foot electrical cord.

Apparently Upset by Thievery

A father of two who was described as reserved and soft-spoken, Monfils was apparently upset by the raucous behavior and blatant thievery of Kutska and some of his co-workers. Near dawn on Nov. 10, he placed a call from the plant to the Police Department to report that Kutska had stuffed a yellow extension cord into his lunch box. He would be leaving through the gates about 6:30 a.m.

“I don’t want my name used,” he said, identifying himself only as “Tom.” But his call was taped.

The police dispatcher did as promised. She called the security unit at the James River paper plant, where a guard tried to stop Kutska as he left. He refused to be searched, however, and rushed past the guards.

For that, he received a one-week suspension without pay.

After getting from police the recording of Monfils’ call, he played it for a small gathering of workers. They identified the voice as that of Monfils, and then the group confronted him.

The next time anyone saw Monfils, it was at the bottom of the pulp vat, a huge container used to break down wood particles. The coroner said later that Monfils’ ribs had been broken and his head beaten before he was thrown, still alive, into the vat.

More than a year passed before criminal charges were brought. The mill workers kept silent. Kutska and five others had been seen near Monfils’ work station that morning, but each man told investigators he had not seen anything suspicious.

But prosecutors said the men had acted as “a mob with a twisted sense of loyalty to the union brotherhood.” All six were charged with first-degree murder.

In 1995, they were convicted and sentenced to life in prison.

Susan Monfils, his widow, then filed a wrongful-death lawsuit against the Police Department.

During the 1997 civil trial, half a dozen Green Bay officers testified they had done nothing wrong.

“I think they acted in good faith,” said Police Chief Robert Langan. They certainly were not responsible for Monfils’ death, he testified.

A lawyer for the police said Monfils had contributed to the problem by hiding his identify from officers. “He refused to identify himself, so they didn’t make a record of” his request for confidentiality when Monfils called, Kevin P. Reak said in an interview.

“We also had an extremely liberal public records law. Kutska was saying he just wanted to clear himself,” added Reak, a Milwaukee attorney.

But Bruce R. Bachhuber, the Monfils family’s lawyer, played the police tapes for the members of the jury. They heard one officer after another brush off Monfils’ pleadings.

Call back later, one officer advised. Another officer laughed when Monfils said he was fearful for his life, commenting that police face danger all the time.

“Nobody listened. Nobody took him seriously,” Bachhuber said recently. “It’s astonishing when you listen to these calls.”

Perhaps the most damaging trial testimony came from Pat Hitt, a county prosecutor who works with the police. One of the last people to speak with Monfils, Hitt agreed to testify on behalf of Monfils’ widow.

“Just before noon that Friday, the receptionist said she had somebody on the phone who was scared, but didn’t want to give his name,” Hitt recalled in an interview. “He told me the whole story, about his call and Kutska. He sounded intelligent and sincere, but also frightened.

“I explained that [the police] didn’t have to release the tape, and I said I would call over there [to the department] as soon as I got off the phone,” he continued.

Hitt testified that he then called Deputy Chief Jim Taylor and said, “I just had a weird call” from a man who is worried about a tape. Taylor replied that he knew all about it because he had earlier spoken to the same person.

Do not release the tape, Hitt told the deputy chief. “If anyone has a question about it, call me,” he said.

Taylor told Hitt he would take care of it. A few minutes later, he checked the office computer and found no record of a police car going to the James River plant on Nov. 10. He assumed no tape or record was on file.

In fact, however, a tape of Monfils’ original call sat on a desk 20 feet away, left there by another officer so Kutska could pick it up that afternoon.

Taylor then left the office to go deer hunting.

The jury awarded $2.1 million in damages to Susan Monfils and her two children.

But the case was not over.

Police Held Not Liable in Pursuits

The Supreme Court has made it much harder over the past decade for private citizens to sue the police and other public agencies. Federal judges are encouraged to throw out verdicts that were based on expansive interpretations of constitutional rights.

Recently, for example, the court has said the police are not liable for reckless, high-speed pursuits that result in injury or death to others.

The most famous example came in the 1989 case of Joshua DeShaney, a Wisconsin child who was nearly beaten to death by his father. Child care workers in Winnebago County had been told repeatedly that Joshua’s father was abusive, and they promised to monitor the situation.

Instead, they did nothing as the beatings continued, and Joshua suffered irreparable brain damage.

But Chief Justice William H. Rehnquist, writing for the court, threw out a lawsuit brought on Joshua’s behalf, saying public agencies do not have an “affirmative obligation” to protect citizens, even when a danger is apparent. “A state’s failure to protect an individual against private violence” is not a basis for holding an agency liable, he said.

“Poor Joshua,” exclaimed Justice Harry A. Blackmun in dissent.

In appealing the Monfils verdict, the lawyer for the city of Green Bay relied on the DeShaney decision, arguing that police cannot be held liable for their “failure to protect an individual against private violence.”

The U.S. Court of Appeals in Chicago disagreed. This was “a state-created danger,” its judges ruled last year. A police department violates a citizen’s constitutional rights when it secretly tapes his confidential call and then puts his life at risk by handing over the tape to the accused, it said.

The city appealed that decision to the Supreme Court and quoted from Rehnquist’s opinion in the DeShaney case. But without dissent, the justices last month turned down the appeal and upheld the verdict. (Taylor vs. Monfils, 98-1744)

Taylor and the police chief, who have retired from the Green Bay Police Department, have refused to talk about the case. A still-pending civil suit seeking punitive damages hangs over them.

Reak says he is not reconciled to the verdict. “I still don’t see how Taylor and others violated the Constitution,” he said.

Hitt says the case is not over for him, either.

“I felt sick,” he said, when he first realized the man he had spoken with on the phone was the man who was found dead in the pulp vat.

“And I feel sick today when I think about it. My son goes to school with Tom Monfils’ boy,” Hitt said. “This death should not have happened. I wish I could forget this case, but I never will.”