Rethinking Testimony for Sale Federal Court Ruling Could Undermine the Longstanding US Practice of Plea-Bargaining

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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. …