Leniency: Is it a break or a bribe? Deals: A routine drug prosecution in Kansas leads to an appeals court ruling that could stop the common practice of trading testimony for a lighter sentence in criminal cases.

Sun Journal

July 12, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- A routine drug case, a defense lawyer's chance reading of a legal magazine, and an appeals court's bold interpretation of a law -- together, those have produced a shock that has stunned the federal legal establishment.

In a clear illustration of how an uncoordinated sequence of events can coalesce into a landmark legal controversy, what has happened in Kansas, and then Colorado, threatens to take away from federal prosecutors one of their preferred -- and easiest -- ways of making a case: promising one suspect leniency in a swap for testimony against another.

Those momentous developments began coming together in the perhaps aptly named Epic Center, said to be Kansas' tallest building, in downtown Wichita.

There, on the 12th floor, in federal prosecutors' offices, the drug case against Sonya Evette Singleton was assembled.

And there, four floors higher, in a law firm's offices, attorney John Val Wachtel found a way to turn that rather ordinary drug prosecution into a precedent-setting victory in the 10th U.S. Circuit Court of Appeals, based in Denver.

The appeals court ruled early this month that it is a crime, under a federal law against bribing witnesses, for prosecutors to "buy" testimony with legal favors. No money need change hands, it said; a promise of leniency in exchange for testimony is enough to make the deal illegal.

Before the Justice Department could begin a planned challenge to that daring ruling by a three-judge panel, the full 12-judge Circuit Court in Denver on its own delayed the ruling while it reconsiders whether the decision was right and, if so, whether to apply it to past cases as well as future ones.

A hearing by the full court will be in November.

If the ruling against swapping leniency for testimony stands and applies broadly, U.S. Deputy Attorney General Eric H. Holder Jr. said last week, "it could have a very wide-ranging impact."

"It goes to the way in which prosecutors at the federal, state, local levels have conducted themselves for a good number of years," he says.

The immediate impact could threaten the conviction the government won against Timothy J. McVeigh in the Oklahoma City bombing case.

It could complicate special prosecutor Kenneth W. Starr's efforts to get the testimony of Monica Lewinsky in the White House sex-scandal investigation.

Larry Pozner, a Denver criminal defense lawyer and president-elect of the National Association of Criminal Defense Lawyers, calls the ruling "a bombshell."

"The court has ended decades of government-sanctioned bribery," he says. "A system in which the government could exchange freedom for a story they wanted to hear is a system rampant with injustice and half-truths."

Assistant U.S. Attorney Jim Allison in Denver judges the probable impact of the ruling simply: "One word. Nuclear." Then he adds: "And I understated it."

Other prosecutors say the ruling would make it especially difficult for U.S. district attorneys to prosecute group crimes, such as conspiracy, drug trafficking, health-care fraud and securities fraud -- cases in which leniency deals with some participants produce testimony against others.

The appeals court decision was based on its interpretation of a federal law making it a crime to give or promise "anything of value" to any person in return for testimony that person gives under oath in any court case. It is limited to federal cases.

The language of the law, the court said, "could not be more clear." It found no exception written into it for prosecutors: "The class of persons who can violate the statute is not limited."

The court was using a technique that is gaining increasing favor in the Supreme Court: reading the literal terms of a law to $H determine its meaning and refusing to add something that is not in the language.

Borrowing a quote from the late Supreme Court Justice Louis D. Brandeis, the appeals court said: "Decency, security and liberty alike demand that government officials shall be subject to the same rules of conduct that are commands to the citizen."

Finding that prosecutors in the Wichita drug case had made promises of leniency to a key witness, the court said those promises were a "thing of value."

Since the bargained-for testimony was crucial to the prosecution, the court overturned the conviction of Sonya Singleton and ordered a new trial on charges of conspiring to distribute cocaine and money laundering.

Singleton, now serving a 46-month prison sentence, was caught up in what prosecutors said was a plot to send cocaine from Los Angeles to Wichita for sale there, with the money sent back by Western Union wire transfers.

Her court-appointed defense lawyer is Wachtel, 53, who has a mixed practice of law in the environmental, commercial, farm cooperative and criminal areas. About a third of his practice is criminal.

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