Sometimes you have to wade into a sewer if you want to catch a
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
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. …