10th
Circuit
Overturns
Singleton
Ruling:
Feds
May
Trade
Leniency
for
Testimony
1/15/99
font face="Arial,Helvetica"> 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.)
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