Rethinking Testimony For Sale

Sometimes you have to wade into a sewer if you want to catch a rat.

This is the kind of justification used by prosecutors to explain why they offer plea bargains, immunity deals, and tax-free cash payments to secure the testimony of admitted murderers and con men in a trial.

Most defense lawyers say it just plain stinks.

During the past 20 to 30 years, such tactics have become essential tools in the arsenal of prosecutors in courts across the United States. But a recent appeals court case in Denver is shining a spotlight on the practice of wheeling and dealing with admitted wise guys and snitches. And it is raising fundamental questions about whether it is appropriate for the government to offer cash or other benefits in exchange for supposedly truthful testimony at trial.

At its core, the question is: Should truth have a price?

In a decision that is sending shock waves through prosecutors' offices nationwide, a three-judge panel of the 10th US Circuit Court of Appeals ruled July 1 that plea bargains contingent on a recipient's testifying were a violation of federal law. Ten days later, the court announced it would hold the controversial decision pending a rehearing of the case in November before all 12 judges of the 10th Circuit. The move postpones any immediate impact of the initial ruling, but it has done little to dampen a raging debate within the legal community.

"Congress at one point in time decided that paying for testimony is wrong, in fact it is unethical," says John "Val" Wachtel, the Wichita, Kan., lawyers who successfully argued the 10th Circuit case. "Any testimony that is paid for is untrustworthy."

Federal prosecutors contend the ruling is a mistake that will soon be corrected. Nonetheless, the Department of Justice is asking lawyers across the US to keep track of every related legal motion filed by defense lawyers adopting the 10th Circuit reasoning. Such motions are already beginning to pop up everywhere.

If the initial ruling is upheld, the most high-profile impact would be on the Oklahoma City bombing case, where prosecutors granted a plea bargain in exchange for key testimony against Timothy McVeigh. Under the ruling, any testimony obtained as a result would likely be thrown out and Mr. McVeigh would receive a new trial.

If the decision is affirmed by both the 10th Circuit and later by the US Supreme Court, it would trigger an avalanche of appeals by convicts across the country, legal experts say. Cooperating witnesses played key roles in virtually ever major federal case prosecuted in recent history, including the convictions of Manuel Antonio Noriega and John Gotti, to name two.

If the courts uphold the ruling, it will set in motion "the greatest judicial disaster in the history of the country," says David Russell, a Miami defense lawyer. "It could free 90 percent of the convicted felons in jail." But he doesn't believe it will survive the 10th Circuit rehearing. "The chances of a meteor strike in New York City are better than this case standing," he says.

Many defense attorneys who are elated about the decision are highly skeptical that conservative appeals court judges and Supreme Court justices will sanction such a radical shift in the rules for prosecutors.

"It is such a radical departure from the way the law has been, and we as attorneys are not used to radical departures," says Jake Arbes, a defense lawyer in Atlanta.

The law in question is a little-noticed section of the federal bribery statute that says it is illegal to "give, offer, or promise anything of value" to anyone for or because of his or her testimony.

The issue arose in a Wichita drug case in which an admitted drug trafficker agreed to testify against his alleged co-conspirators if federal prosecutors promised him a lighter sentence. The appeals court ruled that prosecutors violated the prohibition on offering "anything of value" by requiring that the trafficker testify as part of the plea agreement. "It is difficult to imagine anything more valuable than personal physical freedom," the decision reads.

DEFENSE attorneys have long challenged plea agreements. They argue that by offering an inducement to testify, there is every incentive for a self-interested criminal to testify in a way that will please prosecutors, rather than merely telling the truth.

Judges handle this concern by allowing defense lawyers to sharply cross-examine cooperating witnesses about the full extent of the benefits they have received from prosecutors. It is ultimately left to the jury to determine whether the witness is telling the whole truth or is merely parroting what the prosecution wants the witness to say.

What distinguishes the Wichita case is that, in addition to arguing the unfairness of plea bargains in exchange for testimony, Mr. Wachtel also argued that there is a law on the books that forbids everyone - including prosecutors - from rewarding witnesses.

Rep. Bob Schaffer (R) of Colorado says the appeals court is misreading the bribery law. "That statute was never intended to apply to federal prosecutors," he says. "It was designed to deal with the Mafia or other influence peddling that seeks to sway testimony." He says he is prepared to introduce a bill to amend the bribery statute to ensure that it does not apply to prosecutors.

If the 10th Circuit decision is upheld, much of the credit - or blame - will rest on J. Richard Johnston, an Oakland, Calif., tax lawyer who has made the issue something of a professional hobby for years.

"If the basic policy reason behind the [law] is that paying a witness to testify is likely to induce the witness to slant testimony in favor of the side that pays him or her," Mr. Johnston says, "that is a perversion of the judicial system, no matter which side does it."