Saturday, December 2, 2006
In the summer of 1998 there was a ruling in this case that stunned the federal criminal justice system. The ruling threatened to forbid federal prosecutors trading lighter sentences for defendants' testimony in prosecutions against others.
It was a three-judge panel of the 10th Circuit Court of Appeals which ruled on the case in July of 1998. They declared that testimony from a witness who had been offered a lower sentence in exchange for assistance in the prosecution of a co-defendant violated the federal bribery statute and should not be admitted. The defendant argued, and the judges agreed, that such testimony was forbidden since the bribery statute prohibits giving anything "of value" to a witness in exchange for testimony. The controversial ruling called into question a fundamental and longstanding law enforcement practice. Justice Department attorneys and others called the decision "absurd," noting that if prosecutors couldn't offer leniency in exchange for testimony, defendants would have no incentive to plead guilty and the nations' courts would become clogged with cases. They also argued that if the ruling was upheld, thousands of federal cases would be jeopardized, including the convictions of Timothy McVeigh and Terry Nichols in the Oklahoma City bombing.
On January 8, 1999 the full 10th Circuit Court of Appeals rejected the three-judge panel ruling.
In 1997, Sonya Singleton was convicted of cocaine trafficking and money laundering after a co-defendant, Napoleon Douglas, testified against her at trial. In exchange for his testimony, government attorneys promised that they would not prosecute him for other possible offenses and that they would bring his cooperation to the attention of the sentencing judge and the parole board. Singleton was sentenced to 46 months in federal prison. Douglas's sentence was reduced from fifteen to five years, to be served concurrently with time he had to serve in Mississippi. On appeal, Singleton's lawyer, Wichita attorney John Wachtel, argued that the district court erred in allowing Douglas's testimony into evidence because it violated the federal bribery statute, which prohibits giving "anything of value to any person, for or because of the testimony" to be given by that person. This was the first attempt in the statute's 50 year history to apply it to prosecutors. Wachtel said he got the idea after reading "Paying the Witness," an article by a California tax attorney which questioned the logic of calling prosecutor deals with witnesses "plea bargains" but defense deals "bribery." Wachtel had raised this argument at trial, but the district court dismissed the argument in a single sentence ruling: "This statute does not apply to the Government." However, on appeal, a three judge panel of the 10th Circuit Court of Appeals reversed the conviction and granted Singleton a new trial, finding that the testimony should have been suppressed. In its opinion, written by Circuit Judge Paul J. Kelly Jr., the court said
The judicial process is tainted and justice cheapened when factual testimony is purchased, whether with leniency or money. Because prosecutors bear a weighty responsibility to do justice and observe the law in the course of a prosecution, it is particularly appropriate to apply the strictures of [the bribery statute] to their activities.
However, a week after the three judge decision, the full twelve judge panel of the 10th Circuit vacated the judgment in order to reconsider the case again en banc. Critics of the three judge ruling said if it was upheld it would create an absurdity by making it practically impossible to prosecute drug and other conspiracy cases successfully. In its brief, the government called the ruling a "radical departure from history, practice, and established law" and said that it would "make a criminal out of nearly every federal prosecutor."
On November 17, 1998, the panel heard oral arguments from Wachtel and Deputy Solicitor General Michael Dreeben. Wachtel claimed that the government's main argument--that such plea bargains are too ingrained in the law enforcement system to be eliminated--was comparable to that of the segregationists in Brown v. Board of Education. Dreeben argued, among other things, that Congress has passed a number of other laws--including the provision for departures from sentencing guidelines for defendants who provide "substantial assistance" to prosecutors--that assume the legitimacy of current plea bargaining practice.
On January 9, 1999 the full court issued its 9-3 ruling in favor of the government.
In its decision, the court said that the earlier ruling was "patently absurd," and noted that "if Congress had intended that section 201(c)(2) overturn this ingrained aspect of American legal culture, it would have done so in clear, unmistakable, and unarguable language."
Before the January ruling, some legislators were so concerned about the ramifications of the decision that they drafted legislation to trump a decision in Singleton's favor. Two bills proposing amendments to the bribery statute which explicitly exempted prosecutors were brought to the Senate Judiciary Committee, one filed by Senator Patrick Leahy, D-Vt, and Sen. Herb Kohl, D-Wisconsin, and one by Senator Jeff Sessions, R-Alabama. However, after this decision, it is unlikely that the Committee will pursue action on those bills.
Although this ruling struck a powerful blow to the argument that bargained-for testimony is illegitimate, the battle is not entirely over. Singleton's attorney was quoted as saying that he plans to petition the U.S. Supreme Court to review the decision, and cases addressing this issue are currently pending before appeals courts in the 9th, 11th, and DC Circuits.
For more on this case, read excerpts from the full court ruling, the vacated three-judge opinion, the government's brief, and Singleton's brief.