In what has the potential to be one of the most important legal decisions of the century, the full 10th Circuit Court of Appeals heard arguments on Tuesday (11/17) in the case of U.S. v. Singleton. The issue to be decided is whether prosecutors are committing bribery when they exchange cash and or leniency for testimony in criminal cases. A sampling of federal criminal cases by the Dallas Morning News found that such testimony was used in 86% of those trials. If the court finds that such deals are illegal, it could affect the status of hundreds of thousands of cases and convictions. Federal officials are understandably concerned.
Leniency deals are particularly important to the prosecution of drug cases, in part due to the consensual nature of most drug offenses and the lack of a "complaining victim". While the exact numbers are unknown, experts claim that it is likely that thousands of Americans are currently incarcerated on the word of an informant alone.
Nora Callahan, director of the November Coalition, an organization of drug war prisoners, family and friends, told The Week Online, "While no one is keeping statistics on this, it is safe to say that there are thousands upon thousands of cases in which the word of an informant is the only evidence against someone who is serving jail time. There are even more people who plead guilty, and who serve five, eight or ten years in prison rather than face 25 years or more, once they are threatened by prosecutors with the prospect of this type of bought testimony."
Callahan continued, "The government wins 97% of all of the drug cases that they bring to trial. That success rate is higher than for any other type of offense. The reason for this is that if you are prosecuting, say, a murder, you need real evidence, you need motive. In a drug case, the motive, which is either money or drugs, is assumed. All the government really needs is one person who is willing to get on the stand and tell the government's story in exchange for their freedom."
The case at bar involves Sonya Singleton, a 25 year-old mother of two, who was sentenced to four years in prison for her alleged part in a cocaine distribution/money laundering operation. Prosecutors claimed that Ms. Singleton helped to wire some of the money, which she denies. The only witness for the government who identified Ms. Singleton as part of the conspiracy was Napolean Douglas, a convicted felon whose sentence was reduced from fifteen down to five years in exchange for his testimony.
On appeal, Singleton's attorney, John Van Wachtel, argued that federal law, which forbids the exchange or offer of "anything of value" to a witness in return for testimony, applies to prosecutors, as well as to defense lawyers. A three-judge panel of the 10th circuit upheld the appeal. That decision was put on hold just ten days later by decision of the entire 12-member court, pending review.
"In Ms. Singleton's case, the testimony came from an alleged co-conspirator," Wachtel told The Week Online. "My client was twice offered leniency in exchange for her testimony. The first time they (federal prosecutors) approached her, she was twenty years-old. She was told that if she testified, they'd drop charges, but if she refused, they would put her in prison for twenty-five years and that she'd lose her kids. Both times she told them that she knew nothing, and that she wouldn't lie and say she did. Ultimately, (Napolean) turned, and suddenly it's my client they're after."
While federal officials are deeply concerned about the outcome of the case and its implications, Wachtel told The Week Online that exchanging prosecutorial favors for cooperative testimony cannot help but corrupt the process.
"It is one thing to offer a deal in return for substantive assistance in the investigation. It is quite another to have someone testify, with the prosecutors standing over them, when the witness' freedom hangs in the balance depending upon what he or she says. It is an extraordinary incentive either to color the testimony to fit what the government wants to hear, or else to simply lie in exchange for one's freedom."
The three-judge panel that wrote the initial opinion on the case said that "Promising something of value to secure truthful testimony is as much prohibited as buying perjured testimony. If justice is perverted when a criminal defendant seeks to buy testimony from a witness, it is no less perverted when the government does so."
There is concern that with so much riding on the decision, either the full 10th circuit or the Supreme Court, where both sides believe the case will wind up, will make their decision not with regard to the law, but rather with regard to the impact that the current decision would have on the federal law enforcement bureaucracy.
The Dallas Morning News story quotes a member of the 5th Circuit Court of Appeals, who spoke with them on condition of anonymity, who said "If you read the 10th Circuit's opinion, it's well reasoned and easily supported by federal law. But the results would be catastrophic. What do you do as a judge in a situation like that -- follow the law or try to devise a way around it?"
Jack King, spokesman for the National Association of Criminal Defense Lawyers, who filed an amicus brief and who were allowed ten minutes to argue in this case, told The Week Online that federal prosecutors are overstating the practical obstacles that the panel's original decision places in their path.
"They would just have to go out and investigate and gather evidence like the prosecutors do at the state level. An informant could still provide substantive assistance in that investigation, even in return for leniency. What the feds couldn't do would be to pay someone to testify, and then just sit back in the comfortable knowledge that their side of the story has been bought and paid for. They'd have to actually work to make their cases."
Late in the last legislative session, a bill was introduced by Senator Patrick Leahy (D-VT) that would have exempted federal prosecutors from Article 18, Section 201. It is likely that the bill, or something like it, will be re-introduced in the upcoming session.
The Department of Justice declined to comment for this story.
(Attorney John Van Wachtel and NACDL spokesman Jack King were interviewed for the DRCNet weekly radio show, online at http://www.drcnet.org/drcnn/ -- check it out, and if you're motivated, shop it around to your local radio stations and get the word around!)