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1. 10th Circuit Overturns Singleton Ruling: Feds May Trade Leniency for Testimony

In a decision that clearly pleased federal prosecutors, the full 12-member 10th Circuit Court of Appeals overturned the decision of a 3-judge panel from that court on the issue of trading leniency for testimony in federal cases. The decision was 9-3, with the original three judges dissenting.

At issue was the common practice of offering leniency, including the dropping of charges, in return for the "right" testimony against others. The practice is nearly universal in federal drug cases, where it is not uncommon for numerous defendants to be sentenced to long sentences on the word of an informant alone.

The three judge panel who rendered the original decision ruled that federal law, which states that "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... before any court... shall be fined under this title or imprisoned for not more than two years, or both" -- applies to the government as well as to defendants and civil litigants. They equated the practice of the government as akin to bribery, holding the futures of cooperating witnesses over their heads to be determined based on the "nature and extent" of that witness' cooperation. Such a ruling would have impacted literally thousands of federal drug cases. That ruling was quickly set aside and a hearing en banc (in front of the entire court) was scheduled.

The government's argument was that the statute does not apply to federal prosecutors, who, acting in the name of the government itself, are not included in the term "whoever". The full court agreed with the government on this point, and further found that it was not the intent of congress to outlaw this common federal prosecutorial practice.

Nora Callahan, director of the November Coalition, an organization which advocates on behalf of drug war prisoners and their families, told The Week Online that the issue is far from closed.

"In the months since the original decision by the three-judge panel, there have been similar decisions handed down in the 4th, 5th, 8th and 11th circuits. This indicates that there are many federal judges who are deeply disturbed by the practice of trading freedom for testimony. The incentive to lie, to tell the feds exactly what they want to hear, is overwhelming. Today, in America, there are literally thousands of people who are sitting in prison based on the bought testimony alone, with no other evidence against them. It is an affront to justice, and to humanity itself. And it's important for people to remember that this can happen to anyone, to anyone's child. If your eighteen year-old has a friend who is arrested on a drug charge, your child, regardless of whether he has done anything wrong or not, could easily be "named", and sent to prison, conceivably for life."

Eric Sterling, President of the Criminal Justice Policy Foundation, told The Week Online that while the 10th Circuit decided the case upon the narrow issue of the federal bribery statute, there is a broader and more important question to be resolved.

"The general oversight power of the bench is to ensure that justice is done," said Sterling. "Therefore, the broader question involves the integrity of the courts. 'Is this fair? Is such testimony dependable?' Ultimately, it is not."

"By offering such testimony to the court, prosecutors make an unwarranted vouching of authenticity. That in itself operates as a fraud upon the court. They (federal prosecutors) are putting forth testimony that they want to believe, that they hope is true. But such testimony is inherently suspect, and it is usually offered without substantial corroborating evidence. Such testimony, given under threat of imprisonment, ought to be generally prohibited, and allowed only in cases where it can be substantially corroborated."

(The Criminal Justice Policy Foundation is online at http://www.cjpf.org. The November Coalition is online at http://www.november.org. See our original story from the Singleton case, featuring interviews with Sonya Singleton's attorney, John Van Wachtel, and National Association of Defense Lawyers spokesman Jack King, on our web site at http://www.drcnet.org/wol/068.html#testimony.)

2. SNITCH

If you didn't have an opportunity to see "SNITCH" this week on PBS' Frontline, you missed one of the most powerful indictments of bought testimony, and of the drug war itself, ever to be shown on American TV. Check out the PBS web site at http://www.pbs.org/wgbh/pages/frontline/shows/snitch/ for a primer on mandatory minimums and their history, pro/con arguments, background readings, case studies, discussion and more. One of the featured interviewees is Eric Sterling, a member of DRCNet's advisory board, quoted in the previous story. Videos can be ordered by calling 1-800-PLAY-PBS -- but call soon, they've gotten so many orders that they're backed up till February already. Ask them for the paperwork to get permission to show the tape at meetings of your local civic groups, or invite your friends or families over for a private showing. E-mail your comments and compliments to [email protected].

3. Voice of the Prisoner

The November Coalition announces the release of their long-awaited "Prisoner Audio CD," featuring 24 recorded messages from Drug War Prisoners and family members. The Prisoner Audio CD is available for $11 postage paid or $10 for $70, free to radio stations. Hear preview clips on the November web site at http://www.november.org/prisoncd.html. Comes with a three-page booklet of facts and figures. Send checks or money orders to: The November Coalition, 795 S. Cedar, Colville, WA 99114. To get involved in the CD distribution effort or find more information, contact project coordinator John Humphrey, [email protected]. The Prisoner Audio CD was funded by a grant from the Drug Policy Foundation.

4. Forfeiture Scandal in Missouri

Lawmakers in Missouri are scrambling to revise the state's rules about police handling of assets seized in drug cases, after a five-part expose in the Kansas City Star earlier this month alleged that local police were diverting millions of dollars in seized cash and other assets that were supposed to go into the state's school coffers. Under Missouri's civil forfeiture laws, forfeited assets must be turned over to public schools. But according to the Star story, Missouri police have made prodigious use of a loophole in the law which allows them to turn the assets over to federal law enforcement agencies, which as a rule return 80-90% of the money to the local police. The Star said it was unable to confirm the precise amount of money siphoned off from schools in this manner, because both local and federal law enforcement agencies refuse to release exact figures. But the paper trail the Star was able to assemble from police reports, as well as from court documents in cases where school districts have sued their local police departments to recover the funds, has led their estimates to millions, perhaps tens of millions of dollars.

Response from the state legislature was as varied as it was immediate. One proposal would prohibit police from turning over any seized assets to federal agencies, while another bill proposes to cut the feds out of the picture but allow the police to keep all of the money. Many legislators are supporting a bill that would split the take between schools and police 50-50. State Representative Craig Hosmer (D-Springfield) was quoted by the Star as saying that educators who had resisted such a compromise in the past were beginning to warm to the idea because they realize that "fifty percent is better than nothing."

DRCNet spoke with Tom Gordon, president of Forfeiture Endangers American Rights (FEAR), who said the police behavior described in the Star story is "typical" of police agencies involved with civil forfeiture. "It's ironic that the law enforcement agencies claim to be going after people for crimes such as money laundering, when that's essentially what the police are doing themselves with the assets they seize. Their behavior is strikingly similar to organized crime, where the money is taken by force and then laundered through the federal government, which retains a processing fee but otherwise hands them back the cash free and clear. Then you have the state legislature acting like a crime victim on behalf of its citizens, trying to bribe the police by saying 'we'll give you fifty percent' in order to get what their schools are legally entitled to. It's like they're offering to pay protection money."

It is unclear who will prevail in Missouri. Some law enforcement representatives have said they will fight any plan that nets them less than what they get now from the DEA and the FBI, but the Star's expose has already become a public relations nightmare for the police, both for the specifics of the case in Missouri and for the attention it draws to civil forfeiture in general. "Hopefully," says Gordon, "this will result in a lot of information becoming public as citizens become outraged at these abuses by the police."

Learn more about civil forfeiture at the FEAR web site, http://www.fear.org. Read the Kansas City Star story at http://www.kcstar.com/projects/drugforfeit/. Tom Gordon has been interviewed for this week's Drug Reform Coordination Network News radio show, online at http://www.drcnet.org/drcnn/ from late Friday afternoon.

5. REPORT: Prohibition and Public Health

The lead article of the January/February issue of Public Health Reports, the official Journal of the U.S. Public Health Service, argues that increasing U.S. drug enforcement has driven increased overdose deaths and drug-related emergencies.

According to Excite News, the author, Dr. Ernest Drucker, professor of epidemiology and director of the division of community health at Montefiore Medical Center in New York, said "While our government officials claim success in reducing drug use, drug-related deaths and diseases have increased sharply. That's the best measure of the impact of our drug policies and they are failing." From 1978 to 1994, drug-related emergency room visits rose by 60 percent, from 323,100 annually to 518,500, and overdoses increased by 400 percent, from 2,500 to 10,000, according to the report.

Drucker further explained that Hispanics and African Americans are far more likely to be arrested for drug-related offenses and suffer a higher rate of emergencies and overdose deaths than whites, despite using drugs at the same rates.

Dr. Drucker's article is available online in PDF format at http://www.of-course.com/drugrealities/. The excite.com Health New article is available online at http://nt.excite.com/news/u/990113/13/health-drugpolicy/. Ernest Drucker has been interviewed for this week's Drug Reform Coordination Network News radio show, online at http://www.drcnet.org/drcnn/ from late Friday afternoon.

6. Health Emergency 1999

One of the public health consequences of prohibition is the spread of HIV through sharing of syringes. Read the latest information on the epidemic of injection-related AIDS, with a focus on the disproportionate impact of the problem on the African American and Latino communities, in the Health Emergency 1999 report from the Dogwood Center, online at http://www.drcnet.org/healthemergency/.

7. City of Oakland Files States' Rights Brief in Defense of Cannabis Co-op

The city of Oakland filed an amicus curiae (friend of the court) brief on Monday (1/11) arguing that federal law does not, as the federal government has argued, always trump state law, under the 9th and 10th amendments of the Constitution. The brief was filed in the Ninth Circuit on behalf of the cannabis co-op, which is appealing an October 19th order by District Court Judge Charles Breyer that the club be closed.

The club has since been reopened, but it is no longer providing marijuana to its patient-members. Instead, it is offering grow tips and related merchandise, trying to raise money for its defense. The city of Oakland has long allied itself with the club during this fight with the federal government; at one point, the city even "deputized" the club's personnel as officers of the city in an attempt to take advantage of a loophole in the federal controlled substances act.

The city's brief calls the federal law on medicinal marijuana "legislated truths" and that the voters of California have deemed, by their vote, that access to medicinal cannabis to be "a fundamental liberty interest."

Jeff Jones, the club's founder and director, is hopeful.

"We feel that the 9th and 10th amendment arguments are very strong in this case. We're also extremely pleased that even after we've been shut down by the feds, the city is still behind us 100%, and that they have been willing to do whatever is necessary to make sure that the citizens of Oakland who are suffering from AIDS, cancer, glaucoma and other serious ailments have safe, legal access to their treatment of choice."

8. Peyote Foundation Tests Patience of Local Law Enforcement, May Test Arizona Religious Freedom Law

Leonard Mercado says all he wants to do is live a simple life. But life became much more complicated for him and his family last Friday, when local law enforcement agents arrived on his doorstep in Kearny, Arizona to serve a warrant for unpaid child support, and left the next day with more than 11,000 peyote cacti. According to Mercado, the officers who served the warrant for unpaid child support (which Mercado settled that day) were members of the local narcotics task force. A spokesman for the Pinal County Sheriff's Department could not confirm this, but Charles Ratliff, a spokesman for the County Attorney's Office later denied it. Ratliff said one of the officers who served the warrant noticed the peyote, which was housed in greenhouses on Mercado's property. The officers then obtained a search warrant and confiscated the plants. The County Attorney's Office will decide whether to pursue criminal charges against Mercado pending a review of police reports.

Mercado is the director of The Peyote Foundation, a private non-profit organization whose stated mission is to educate the public about the spiritual significance of peyote and to promote the plant's genetic diversity through cultivation and conservation. This is the third time in four years that local authorities have seized peyote from Mercado.

In 1995, Pinal County Attorney Gilbert Figueroa declined to prosecute Mercado for possessing some 1,000 plants, and returned the peyote to the Foundation. Two years later a new County Prosecutor, Robert Carter Olson, refused to return to Mercado a single peyote button, known as a "chief" or "grandfather" peyote, that had been seized from Mercado's medicine bag. Mercado went to court to have the peyote returned to him, but the judge in the case denied his claim, saying that Mercado had failed to prove he had a legitimate claim to possess peyote under Arizona law.

Under the federal Religious Freedom Act, only members of the Native American Church are exempted from prosecution for possessing peyote. But the Arizona law is broader, allowing a defense by anyone who can prove that the peyote is used in connection with "a bona fide practice of a religious belief, and as an integral part of a religious exercise, and in a manner not dangerous to public health or safety."

Mercado says that he and his family are members of the Native American Church, but the judge in the 1997 civil case had not believed him. This week, a spokesman for the Church confirmed that the Mercados are in fact members and that religious ceremonies are performed at the Foundation. The spokesman has been negotiating with the county attorney's office for the release of the peyote. For its part, the county attorney's office, still under the direction of Robert Carter Olson, has taken pains to assure the public that the sacred plants will be treated respectfully. Ratliff told DRCNet that offers by the Native American Church to claim the peyote have been "taken under advisement" but that no decision has been made yet to release the plants..

Many of the people DRCNet spoke with in researching this story said that while Mercado's cultivation of peyote is unorthodox by the traditions of the Native American Church, which generally hold that peyote must be found and harvested in the wild, his earnest belief in the sacred uses of the plant is obvious to anyone who knows him or visits his property. Richard Glen Boire, an attorney in Davis, California and editor of The Entheogen Law Reporter, said, "Mercado's entire lifestyle is steeped in a reverence for peyote, so there's no question about his sincerity, and that's really the only issue under Arizona's exemption. It appears to me that this is another instance of government trumping individual rights, and indeed the preeminent right of the freedom of religion in order to wage this monstrosity of a war on drugs."

Mercado said he believes the Peyote Foundation is a thorn in the side of the county attorney's office. "We're not evangelists here but we're also not doing anything in secret," he said from his home this week, "and I've heard throught he grapevine how Robert Carter Olson said he's not going to have the Peyote Foundation existing in his county."

Mercado is prepared for a court battle, he says, and would like to see the issue settled. But, he said, "I don't think this can really get fixed in the courtroom. For me it gets fixed in the ceremony. I've already settled my heart, but these guys don't know about that. So I'm going to have to go in there and play that game, even though for me it's just not the jurisdiction that I seek my justice in."

In his 1997 decision denying Mercado's civil claim, the judge wrote that Mercado had "demonstrated himself to be an addicted user of peyote" who presented himself "as some carny offering cotton candy for any and all to use." But Mercado says that is not what he, or the Foundation, is about. "We're not here because we believe that peyote is for everybody," he said, "and that's why I believe that this threat that we seem to pose is really nonexistent. Because we're not out trying to get people to eat peyote, we're simply trying to preserve the species and live a simple and a good life."

The Peyote Foundation is updating its web site daily throughout this crisis. You can read about it, and learn more about the Foundation's practices at http://www.peyote.net. Information about the Entheogen Law Reporter can be found at http://www.specmind.com/rgbindex.htm. See also the statement of Reuben A. Snake, Jr. (1937 - 1993), to a gathering of Native American religious leaders in Washington, DC in 1990 at http://cjpf.org/SNAKE.html.

(Leonard Mercado and Richard Glen Boire have been interviewed for this week's Drug Reform Coordination Network News radio show, online at http://www.drcnet.org/drcnn/ from late Friday afternoon.)

9. EDITORIAL: Buying Testimony, Perverting Justice

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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Articles of a purely educational nature in Drug War Chronicle appear courtesy of the DRCNet Foundation, unless otherwise noted.

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