| Early on the morning of February 23, 2004, two police officers in Cottage Grove, Minnesota, saw a vehicle enter a public park. Because of the hour, the park was closed. The officers, Timothy Morning and Don Johnston, followed the vehicle, which then turned around and left the park. The vehicle’s license plate light was out, which made it difficult for the officers to run a license-plate check.
A few blocks later, after the vehicle was said to have swerved erratically, the officers pulled over the vehicle. The driver, 18-year-old Jeremy Corwin, could not produce a license or proof of insurance, and he asked to step out of the car in what he said was an attempt to find his identification. He was arrested for driving without a license. Johnston approached the passenger side of the vehicle and noticed a pearl-handled object on the passenger side near the console. He asked the passenger, 40-year-old Laurence Sarber, to get out and show his identification. Sarber was also unable to produce any ID, but police found he had two outstanding arrest warrants, including one for drug possession. He was taken into custody. The car, which was registered to a third man, was impounded.
During a search of the car, police found a pearl-handled knife and then a fanny pack containing just under 43 grams of methamphetamine powder. The police report said in one section that the fanny pack was found under the passenger seat, and in a second section that it was in the center console.
Sarber was arrested and charged with a first-degree controlled substance offense. Corwin was not charged. It would later come out in trial testimony that Corwin and Sarber did not know each other’s names.
Sarber’s trial in Washington County District Court began on May 10, 2004. Prior to trial, Sarber’s attorney tried unsuccessfully to suppress the evidence on the grounds that the search had been unlawful.
During opening statements, Sarber’s attorney began an effort to discredit Corwin, stating “One last thing about Jeremy Corwin, he wasn’t charged. That is what the evidence will show.”
The prosecution then moved to bar Sarber’s attorney from questioning Corwin about why he wasn’t charged and from making further arguments regarding that issue. The judge granted the motion, stating the potential for prejudice outweighed any probative value.
Under cross-examination, Corwin admitted lying to the police about several issues, including that he had misplaced his driver’s license in the trunk or back seat. He denied hiding any drugs under the passenger seat and said he had never hidden drugs from the police.
Sarber was convicted by a jury on May 24, 2004 and then sentenced to 158 months in prison. His direct appeal focused largely on the judge’s decision to bar questions to Corwin about why he wasn’t charged. The Minnesota Court of Appeals, in a 2-1 decision, dismissed Sarber’s appeal on March 14, 2006, and said that jurors had plenty of evidence that Corwin was a compromised witness. Sarber’s appeal also argued that his attorney wasn’t allowed to cross-examine a law enforcement officer about whether Corwin had ever been arrested for hiding drugs. The judge had disallowed that testimony as hearsay, and the appellate court agreed.
Sarber filed a petition for post-conviction relief in 2008, arguing that the state’s failure to turn over documents related to Corwin’s earlier arrest and his conversations with law enforcement was in violation of the U.S. Supreme Court’s 1963 decision in Brady v. Maryland requiring prosecutors to turn over exculpatory materials to defense lawyers prior to trial. Corwin had been arrested in another town in Washington County about six weeks before he and Sarber were arrested. While in custody that first time, Corwin discussed with Detective Brian Stroshane of the Washington County Drug Task Force about providing assistance in exchange for leniency. No formal agreement was reached. Later, after Corwin and Sarber were arrested, Corwin agreed to become a “confidential informant” for the task force. After a hearing, the Washington County District Court denied Sarber relief. The court said that Stroshane had never actually followed through with assistance. That meant there was nothing in the relationship that required disclosure.
Sarber appealed. The Minnesota Court of Appeals vacated the conviction and granted him a new trial on August 4, 2009. In its decision, the court said the lower court had been mistaken. Stroshane’s testimony made clear that Stroshane had followed through with an effort to help Corwin (his charges were dismissed). As important, Corwin believed Stroshane was looking out for him when he testified against Sarber.
The court wrote: “If only formal quid-pro-quo cooperation agreements between key witnesses and the state must be disclosed to defendants, creative prosecutors could avoid disclosing relevant witness-state relationships and obtain witness cooperation informally, through innuendo or strong suggestion that the witness may receive favorable treatment.”
The charges against Sarber were dismissed on December 15, 2009, and he was released from prison that day. On June 29, 2016, Sarber filed a petition to be declared eligible for compensation under Minnesota’s wrongful convictions statute, but his request was denied later that year.
– Ken Otterbourg
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