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Charges Are Dropped, and Identity of Accuser, Shrouded by City, Is Sought

For five years, Kenneth Creighton was held in jail, suspected of involvement in the killing of a bystander outside a bodega in the Bronx.

In 2012, the charges were dropped. Mr. Creighton was released from Rikers Island. He has since filed a lawsuit against New York City for false arrest and malicious prosecution, and has sought the name of his accuser — a man who told the police that he saw Mr. Creighton hand a gun to his brother, Dior, who was charged in the shooting.

Criminal defendants, generally, have the right to know and confront their accusers. But when the accuser happens to be a confidential witness, the calculus can be more complicated.

Thus far, despite one judge’s ruling against them, lawyers for the city have resisted identifying the witness.

The city says the informant, who is cited in documents as male, “strenuously objects” to having his name revealed because he has known Mr. Creighton “for a very long time” and also knows the Creighton family. The informant “maintains a relationship” with Mr. Creighton and his family, the city says, and believes Mr. Creighton has “no idea” that he helped the police and that he testified before the grand jury.

“The informant fears that he would be in physical danger of retaliation if the plaintiff knew his identity,” the city said in a court filing seeking to keep the informant’s identity secret.

In the court system, the parties to a lawsuit have broad rights to gather evidence, a process called discovery, including information about probable witnesses against them. Initially, when the city refused to divulge the informant’s name, Mr. Creighton’s lawyers objected. A magistrate judge, Debra Freeman of the Federal District Court in Manhattan, then ordered that the lawyers be given the name on an “attorney’s eyes only” basis, meaning that they could not tell their client.

In April, after further arguments, Judge Freeman ruled that the name should also be given to Mr. Creighton, an order the city has appealed to Judge Paul G. Gardephe, also of Federal District Court. The order has been stayed pending his decision.

Mr. Creighton’s lawyers have said in court papers that not being able to reveal the informant’s name to their client has hamstrung them in their case. They cannot discuss the informant with their client, or what motives he might have had for incriminating him, nor can they question other people about the informant, because that would reveal his identity.

And, because the informant still has dealings with Mr. Creighton and his family, who are all unaware of his role in the case, the informant is the “equivalent of a legal spy,” Mr. Creighton’s lawyers, Michael Jaffe and Richard Gross, said in court papers.

“At the end of the day,” Mr. Jaffe said in an interview, “a person who has spent five years at Rikers Island wrongly accused should have every right and every opportunity to be able to pursue a case on their own behalf and confront their accuser.”

The city’s Law Department and the Bronx district attorney’s office declined to comment for this article. In court papers, the city has argued that “the public interest” in keeping the informant’s identity secret “is substantial,” and has asked Judge Gardephe to reverse Judge Freeman’s ruling.

The Law Department had also argued that requiring the city to reveal the informant’s identity “would, in effect, punish the informant for agreeing to help the police in a matter where the suspect was not ultimately convicted.”

“It could certainly put the informant’s safety at risk,” the Law Department said last year, adding that if plaintiffs in such lawsuits could learn the identities of people who secretly provide information against them, “there would be an enormous chilling effect on the willingness of citizens to aid police as confidential informants.”

Mr. Creighton, 25, has submitted an affidavit saying he had “no intention of retaliating” against the informant, whose grand jury testimony, he said, was “completely false.”

“In light of the fact that such false testimony resulted in five years of my life being taken from me,” Mr. Creighton added, he wanted to “learn, after all these years, who my accuser was.”

The shooting occurred on Dec. 26, 2006, when Dior Creighton stepped outside the bodega on East 168th Street in the Bronx and fired a gun, hitting two bystanders, one fatally, according to a memorandum by Bronx prosecutors.

During the investigation, the informant told the police that he had seen Kenneth Creighton, in the store, give his brother the gun used in the shooting, according to the detective’s notes.

“Kenny passed the gun to Dior inside the store,” the informant told the detective.

The informant later testified before the grand jury that Mr. Creighton had pulled the gun out of his pants and held it behind his back, and that his brother “took it” and placed it in his waistband, according to a transcript filed in court.

The store’s owner, however, identified another person to the police as having passed the gun to Dior Creighton, information that the police did not pursue, Kenneth Creighton’s lawyers have told Judge Gardephe. They have also said that Mr. Creighton maintains that he was not at the bodega at the time of the shooting.

Mr. Creighton was indicted in 2007 on charges of possession of a weapon and criminal facilitation, and was jailed pending trial. In 2012, Dior Creighton pleaded guilty and was sentenced to 14 years in prison, a state corrections spokeswoman said. The charges against Kenneth Creighton were dismissed in early 2012.

Michael Raskin, the Legal Aid lawyer who represented Kenneth Creighton on the criminal charges, said the case took as long as it did because of delays concerning the prosecution of his brother.

In her finding that Mr. Creighton should be given his accuser’s identity, Judge Freeman said that the informer’s “supposed ongoing ‘relationship’ ” with Mr. Creighton and his family, while keeping secret his role in the arrest and prosecution, “is troubling, to say the least.”

Judge Gardephe, who has not yet ruled on the issue, echoed those sentiments when he heard oral arguments in May. “Informants tend to be fairly unsavory people,” he observed. “And it is disturbing to me that the informant here, for whatever reason, has maintained a relationship with the Creighton family, knowing the role he played, and that he could still be speaking with the plaintiff and his family up to the present. It’s disturbing.”

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