Where I Stand -- Mike O'Callaghan: Court condemns practice of giving favors to witnesses

A PANEL OF THREE JUDGES of the 10th Circuit Court of Appeals in Denver jolted federal prosecutors over the nation last week. They ruled that prosecutors can't make certain deals with some defendants in exchange for their testimony against other people. This ruling put a dent in a major tool of prosecutors and because of its impact it was stayed until all of the 12 judges on the court can hear the matter in November.

Fifteen years ago, I was among the people who smiled when a Chicago judge said he couldn't believe the testimony of murderer, perjurer, robber and burglar Frank Culotta. This was followed by a Louisiana jury of six men and six women taking only two hours to clear Ginny Foat of a murder that happened 18 years earlier. The chief witness against her was her violent, drunken, convict husband, who was serving time in the Nevada State Prison.

When asked about misleading juries, a local federal attorney told me that "the prosecutor is required legally and ethically to disclose all benefits and potential benefits the witness stands to gain providing such testimony. Benefits include actual or potential favorable recommendations to the sentencing court and to other authorities such as parole boards or other prosecuting entities. Other benefits required to be disclosed would be the actual or potential dismissal of any charges pending against the witness, the willingness of the government not to proceed on greater charges committed by the witness (i.e., the fact that the witness was allowed to plead to a lesser offense) or the fact that the witness obtained immunity from prosecution in exchange for his or her testimony. Favorable consideration for a cooperating witness is always based on truthful testimony and never on the outcome of a criminal case. The arrangement, including the fact that the agreement is based upon the witness's truthful testimony, is clearly set forth in plea agreements."

The recent ruling from the three-judge panel in Denver was in reply to an appeal from Sonya Evette Singleton of a decision by a federal district court in Kansas. Napoleon Douglas was a witness against Singleton and the court noted that "the assistant United States attorney made at least three promises to Napoleon Douglas. Because it is not clear that the government promised to move for a downward adjustment in return for his testimony, we rely for our analysis only on the three promises specifically made in the plea agreement: (1) the promise not to prosecute Mr. Douglas for certain offenses, (2) the promise to inform Mississippi authorities of his cooperation, and (3) the promise to inform the district court of his cooperation. These promises were made 'for' his testimony: Mr. Douglas promised to testify 'in consideration of' the three promises."

These promises, according to the judges, fly in the face of a federal statute which says, "Whoever ... directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court ... authorized by the laws of the United States to hear evidence or take testimony ... shall be fined under this title or imprisoned for not more than two years, or both."

The judges then went on and placed the assistant U.S. attorney within the statutory class of "whoever" and the offerings he made as being "of value" to the witness.

When concluding that the prosecutor was also included under the statute forbidding the giving or promising of something for testimony, the judges quoted former U.S. Supreme Court Justice Louis Brandeis: "Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means -- to declare that the government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face."

They then concluded that the "statute's application to government officials, far from being absurd, is at the center of our legal tradition."

When all was said and done, the three judges made clear that the offerings made to the witness stepped over the boundaries of the statute. The only remedy for this would be an act of Congress changing how the statute now reads.

After studying the 37-page decision I must agree with the conclusion of the judges. Whether or not their nine colleagues will also agree we will learn later this year.

My friend, the federal prosecutor, wants me to consider that "these agreements have existed in the criminal justice system for a long time. The laws enacted by Congress and interpreted by the federal courts have never before questioned their legality. The Federal Sentencing Guidelines recognize and implicitly endorse them. Case law and other federal statutes contemplate their use even to permit judges to go below mandatory minimums, based on the value of such assistance. The judicial, legislative and executive branches are confident in the ability of federal trial judges and juries to give these agreements proper consideration. The system works and there is no need for change."

Very simply, if the decision of the three judges is upheld there will have to be a change in the statute if he wants to have these agreements remain legal.

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