Editorial:
Buying
Testimony,
Perverting
Justice
1/15/99
Adam J. Smith, DRCNet Associate Director, [email protected] This week, the full twelve-member panel of the U.S. 10th Circuit Court of Appeals ruled that it is in fact legal for federal prosecutors to trade leniency, or even freedom, for testimony in criminal cases. The court reasoned that Congress, in outlawing the offer of "anything of value" in exchange for testimony, never meant the law to apply to federal prosecutors. And in fact, such exchanges have been an integral part of federal drug cases for quite some time. The 10th Circuit is probably correct in its assessment of Congressional intent. Where the court erred, however, was in its unwillingness to confront a practice that, in the name of the Drug War, has destroyed countless lives and corrupted the very principles of justice on which the Republic was founded. The issue, then, is not one of the intent of the legislature, or a technical reading of the federal bribery statute, but whether or not such inducements, which provide an overwhelming incentive to lie, are commensurate with basic fairness and due process. Federal prosecutors, armed with a combination of draconian federal sentencing guidelines, broadly interpreted conspiracy laws, and the power to grant leniency to those who testify "well", have in their hands a power so singular as to be virtually dictatorial in nature. Once a prosecutor can make a case, generally a drug case, against a single individual, that person is offered the following deal: "We have enough evidence to charge you with crimes that carry sentences of (insert number, add zeroes) under federal law. We are going to make sure that you serve every day of those sentences unless you give us names, as many as you can, of people who you will swear are involved with drugs, and we will, if we deem your testimony sufficiently "cooperative", let you off with a slap on the wrist, or with no penalty at all." Some people do elect not to cooperate. And some people are naïve enough to believe that they cannot cooperate simply because they don't have any information to give. Many people, however, given this choice, will tell the prosecutors, and the jury, anything that the government wants to hear. Nora Callahan of the November Coalition, a non-profit organization working with drug war prisoners and their families, says that there are thousands upon thousands of Americans who are serving long prison terms based solely on the word of a snitch, someone whose freedom is at stake pending the "helpfulness" of their testimony. Our system of criminal justice is based upon the principles of due process, which demand that two sides, operating under the same set of rules, advocate their positions before a trier of fact. A process determinative of the liberty of an individual under the laws of a free society demands no less. When one side, however, is permitted an advantage that tilts the scales of justice dramatically, then the system is corrupted. The ability of the prosecution to pay-off witnesses, in the coin of their own liberty, in return for the "right" testimony is just such a corruption. Today, across America, thousands of our citizens sit idly behind bars, serving draconian sentences, often without any possibility of ever walking free, for no other reason but that someone else was bribed to give testimony against them. Tens of thousands of others, bit players on the fringes of criminal activity, serve long sentences while more culpable individuals who testified against them walk free. There is no societal crusade, least of which a drug war that has over a period of decades done nothing to reduce the availability of drugs, that can justify this outrage. It is an affront to the very meaning of the word "American". This week, the 10th Circuit Court of Appeals chose to ignore the fact that sworn testimony is being bought and coerced, on a regular basis, by U.S. prosecutors. Under their ruling, apparently, justice is whatever the government deems it to be.
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