Ruling Against Testimony Deals Hits Prosecutors

WASHINGTON —  One of the federal government’s best weapons in the fight against crime--granting deals for some defendants in return for their testimony against others--is now in jeopardy because of an appeals court ruling that the time-worn tradition violates the law.

That opinion, reached last week by the U.S. 10th Circuit Court of Appeals in Denver, ultimately could handcuff federal prosecutors. And it could have immediate consequences, perhaps triggering new trials in federal cases in the six states of the 10th Circuit, including the Oklahoma City bombing convictions.

Stung by the unanimous appellate opinion, the Justice Department’s No. 2 official announced here Thursday that he will seek an immediate hearing before the Denver appellate court to have the ruling set aside.

And the attorney general’s office said that it is asking the nation’s U.S. attorneys to notify Washington of an expected flood of requests from defense attorneys across the country seeking to have their clients’ convictions overturned.

The appellate court, strictly interpreting a 1962 statute, ruled that it is illegal for prosecutors to grant anyone “anything of value”--such as immunity or a reduced prison sentence--in return for cooperation against other criminal defendants.

“If the decision is read very, very broadly, it could have a very wide-ranging impact,” said Deputy Atty. Gen. Eric H. Holder Jr. “It goes to the way in which prosecutors at the federal, state and local levels have conducted themselves for a good number of years.”

Holder, himself the former U.S. attorney in Washington, also defended the prosecutor’s art of deal-making with criminals. “Any responsible prosecutor always tries to substantiate [what] any witness for the government is going to be saying. And especially . . . in instances where the testimony is elicited after some kind of a deal is struck.”

The practice of using one defendant against another, particularly in complex conspiracy cases involving drugs, organized crime and public corruption, is as important to prosecutors as any other tool at their disposal.

It was used in the prosecutions of both the New York World Trade Center and Oklahoma City federal building bombings, as well as in routine cases such as one in Kansas involving a Los Angeles drug network that led to the appellate court’s decision.

Key Obstacle Seen for Prosecutors

Larry Mackey, a chief prosecutor in the Oklahoma bombing trials of Timothy J. McVeigh and Terry L. Nichols, said that, if the decision is upheld, it would be a devastating blow to prosecutors everywhere.

“It would lay down skid marks in front of the courthouse,” he said.

And Andrew Sonner, a judge in Maryland and a prosecutor for 25 years there, said that a countless number of complicated cases would no longer result in convictions.

“It’s an indispensable tool,” he warned. “These kinds of deals are made every day in every jurisdiction in the United States.”

In the McVeigh and Nichols trials, the prosecution hinged much of its case on the testimony of Michael Fortier, a McVeigh confidant who pleaded guilty to other charges.

After Fortier cooperated with the government and testified as their star witness in both trials, prosecutors lobbied a federal judge to go lightly on his sentence. Fortier once was looking at a maximum of 23 years in prison. He received 12.

The opinion was issued by three members of the 10th Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. One of them is the chief judge of the circuit, who wields considerable influence. The other two and a third judge will decide McVeigh’s appeal.

McVeigh, Nichols Cases Are Key Tests

Prosecutors said that they expect the McVeigh and Nichols convictions to stand because defense attorneys never initially argued that the government broke the law by making a deal with Fortier.

But Holder said that he wonders whether it is that clear. “You know, you look at the opinion and you can see some problems that might crop up.”

Defense attorneys for McVeigh and Nichols declined to comment on how they might now proceed.

The appellate court based its decision on an appeal by a Wichita defense lawyer who represented a young mother of two caught in a drug-laundering operation begun in Los Angeles.

In 1996, Sonya Singleton of Wichita and several others were indicted in a conspiracy case in which, the government said, cocaine was brought from California and sold in Kansas. Wire transfers then were used to send drug profits back to the West Coast.

In assembling their case, prosecutors agreed to seek a reduced sentence for Napoleon Douglas of Los Angeles if he would plead guilty and testify against Singleton and others.

Douglas’ attorney, Bill Cummings of Wichita, said that prosecutors and government agents spent weeks transforming Douglas into a credible witness.

“I know they would visit him in jail,” Cummings said. “They probably made from eight to 10 visits while he was incarcerated. They would go up there and talk about his testimony.

“And they said they would be good to Napoleon because he helped them out,” Cummings said.

After Singleton and the other defendants were convicted, prosecutors asked for and received a five-year prison sentence for Douglas. He could have been given a term of as long as 15 years.

In addition, prosecutors wrote a recommendation on Douglas’ behalf to the state of Mississippi, where he was in prison on an unrelated drug case and was awaiting a parole date within three years.

“They did put in a good word for him,” Cummings said.

Study Spurred Legal Challenge

John V. Wachtel, the Wichita attorney who represented Singleton and filed the successful appeal, argued that the 1962 statute specifically declares that such quid pro quo arrangements are illegal and, in fact, are tantamount to bribery. The practice is wrong, he said.

“The government is lying down with dogs and getting up with fleas,” Wachtel said. “When they make deals with criminals, the public no longer respects them.”

Wachtel decided to challenge the wording of the statute after reading a study called “Paying the Witness” that was prepared by an Oakland lawyer, J. Richard Johnston.

In that study, Johnston noted that the statute makes it a felony if someone “directly or indirectly gives, offers, or promises anything of value” for the testimony of any witness.

Johnston said he found it intriguing that no one ever had challenged the government under this statute in the past.

Witness in Terrorist Trial Got $1 Million

In one celebrated case, he said, Emad Ali Salem was paid more than $1 million for testimony that helped convict his former allies, including Sheik Omar Abdel Rahman, for plotting to blow up the United Nations and other New York landmarks.

The sheik was convicted, even after Salem admitted under cross-examination that he had been paid the large sum.

In his study, Johnston also noted that the statute does not exempt prosecutors from such conduct. “No prosecutor has ever been prosecuted for doing this,” he said. “They don’t prosecute themselves.”

But Sonner, the former Maryland prosecutor, said that making deals is often the most effective way to do business.

“Drug cases are made by turning users against suppliers, and lower suppliers against higher suppliers and higher suppliers against the kingpins,” he said. “All prosecutors do it.”

Times staff writer Ronald J. Ostrow contributed to this story.