IS PLEA BARGAINING AN ILLEGAL TACTIC?

LAWYER SAYS THE AGE-OLD PRACTICE GIVES PROSECUTORS AN UNFAIR ADVANTAGE.

Wichita, Kan., lawyer John V. Wachtel didn't know he would be starting
a legal trend when he challenged the long-standing practice of
prosecutors offering deals in exchange for testimony.

He just believed he was right and hoped he could convince three judges
on the 10th U.S. Circuit Court of Appeals.

In July, he did. The judges ruled that the government's offers of
leniency in return for testimony against co-defendants violate a
federal bribery statute.

Criminal defense lawyers cheered. Prosecutors scratched their heads at
what they called an absurd decision.

An appeal before the 12 judges of the 10th Circuit in Denver followed.
This month, in a 9-3 decision, the judges handed prosecutors a victory
by finding that the statute prohibiting someone from offering anything
of value for testimony doesn't apply to them.

But the issue Wachtel raised in the case of a woman convicted of money
laundering and conspiring to distribute cocaine isn't buried.

Wachtel, who recently filed an application to practice before the U.S.
Supreme Court, intends to ask the high court to hear the issue.

"I think the court of appeals has misunderstood the law," he said.
"And there are some things that are just plain wrong and ought to be
fixed, and this is one of them."

He's not overly confident the Supreme Court will accept the appeal.
He's been told the chances are "somewhere in the vicinity of slim and
none."

The Supreme Court generally only takes about one of 100 cases
presented to it, and half of those are civil cases.

News of the original decision spread like wildfire in the legal
community. Since Wachtel's initial win, defense lawyers nationwide
have been filing motions in state and federal courts to try to
prohibit prosecutors from using testimony of co-defendants who were
offered deals.

The 10th Circuit's ruling only applies in cases within Colorado,
Kansas, New Mexico, Oklahoma, Utah and Wyoming.

So lawyers in other state and federal courts, including Lehigh County,
have borrowed Wachtel's idea and arguments. In some cases, they have
won.

"We have gotten hundreds of requests for copies of Mr. Wachtel's
motion and briefs from lawyers across the country," said Jack King,
director of public affairs for the National Association of Criminal
Defense Lawyers in Washington, D.C.

Those lawyers have sent their briefs to the association, which has a
"brief bank" for its 10,000 members in the United States, Canada,
England, Puerto Rico and Guam, according to King, also a criminal
defense lawyer.

After the July decision, Allentown lawyer Tommaso Lonardo used
Wachtel's argument in the case of Stephen M. Konya, who was charged
with running a cross-country methamphetamine ring. Konya and 10 others
were arrested in April.

In Konya's trial, Lonardo asked a Lehigh County judge to prevent the
state attorney general's office from using testimony from five
witnesses who were offered plea bargains.

Each plea agreement specified the crime each person was admitting and
the "set sentences" they were to get.

"The cooperating witnesses were bought and paid for," Lonardo
said.

That, Lonardo argued, violated the federal statute outlawing promising
anything of value in exchange for testimony.

In October, Judge Carol K. McGinley ruled against him and denied the
request to suppress the testimony of co-defendants who accepted plea
bargains.

A jury convicted Konya, 41, of Allentown, who later was sentenced to
24 years in prison, 10 years' probation and a $150,000 fine.

So far, at least four cases in U.S. state and federal courts have
challenged such plea bargains and won when judges said that testimony
couldn't be used. Two were in Florida and Louisiana.

But in the appellate stage, two of the decisions were overturned. One
appeal in the District of Columbia Circuit is pending.

The anti-gratuity provision of the federal bribery statute
states:

"Whoever ... directly or indirectly, gives, offers, or promises
anything of value to any person, for or because of the testimony under
oath or affirmation given or to be given by such a person as a witness
upon a trial ... before any court ... shall be fined under this title
or imprisoned for not more than two years, or both."

How did this federal statute find its way into the
limelight?

It had been on the books, but as Wachtel pointed out, no one really
sits around reading federal laws.

Wachtel, a lawyer for 24 years, was appointed by the court to
represent Sonya Evette Singleton, 25, a mother of two who was accused
of sending and getting drug proceeds by Western Union wires.

A co-conspirator had reached a plea agreement with the U.S. Justice
Department to testify against Singleton. In return, the government
promised not to prosecute him for certain offenses and to tell the
sentencing judge and a parole board of his cooperation.

About that same time, Wachtel had read an article written by
California tax lawyer Richard Johnston, who questioned the fairness of
the government being able to offer incentives for people to testify.

It got Wachtel thinking. "If we, as defense lawyers, did that, we
would go to jail," he said. "Why do the same rules not apply to the
government?"

He knew of one case where a federal prosecutor offered U.S.
citizenship to a potential witness.

The federal statute was again called to his attention in a civil case
in which his firm was involved. A plaintiff in a lawsuit in Texas had
offered a reward for testimony in a case without first talking to his
lawyer.

The opposing lawyer cited the statute, and a judge granted a motion to
exclude testimony of the witness who was promised a reward.

Wachtel said he wondered why testimony presented by a government
witness who accepts a deal is more believable simply because it is
offered by the government.

Though the statute existed, no one thought to question or apply it in
cases where the government promised deals, said King of the defense
lawyers association.

Plea bargains were routinely made. "It's just the way things have
always been done," he said.

In the meantime, Singleton was convicted and sentenced to almost four
years in prison. She is serving her sentence in a Texas prison and
will be eligible for parole in April.

Wachtel appealed her conviction and argued before three U.S. Circuit
judges that the trial judge should have prevented prosecutors from
using the testimony of the co-defendant because they violated the statute.

"You know you are going to lose," lawyers told him.

But in a ruling that stunned prosecutors, three judges agreed with
Wachtel.

"The judicial process is tainted and justice cheapened when factual
testimony is purchased, whether with leniency or money," the judges
said.

Offering leniency is the most obvious incentive for lying, they
said.

They ordered a new trial, but the decision was vacated, and all 12
judges of the 10th Circuit reheard the appeal.

Federal lawyers argued that the statute didn't apply to the government
and that Congress never intended for it to apply to federal
prosecutors. The defense said it did.

In a Jan. 8 decision, the majority of the judges said the defense
argument was "patently absurd."

In part, they said the term "whoever" in the statute means "a being,"
or a person, and not an inanimate entity, like the government.

The judges also found that applying the law to the government would
undercut a practice that has been ingrained in the criminal justice
system.

Citing another court ruling, they said, "The concept of affording
cooperating accomplices with leniency dates back to the common law in
England ..."

The decision didn't surprise Lehigh County District Attorney James B.
Martin or Northampton County District Attorney John Morganelli.

"I expected that decision would be overturned either through the
judicial process or legislatively," Morganelli said.

Even if the initial ruling had been upheld, prosecutors predicted that
Congress would have amended the law to exempt them from it.

"I think that any practical, pragmatic look at how the criminal
justice system operates requires that cases be disposed of by ...
guilty pleas, and the inducement to enter a guilty plea is most often
by a plea agreement of some sort," Martin said.

Last year in the county, 55 criminal cases were tried before juries
and judges. "If we were unable to resolve cases by plea agreement, you
could imagine what a significant impact that would have on the
disposition of criminal cases," Martin said.

The panel of three judges who agreed with Wachtel the first time filed
a dissenting opinion.

After they issued their controversial July decision, the judges said,
"Prosecutors from coast to coast have attempted to portray it as the
death knell for the criminal justice system as we know it."

Prosecutors had said that not being able to offer deals would affect
their ability to arrest criminals and get convictions and would result
in more trials than the courts could handle.

The dissenting judges said prosecutors made the same grave forecasts
when, in 1966, the U.S. Supreme Court ruled that suspects be told of
their right to remain silent and to have a lawyer.

"Experience has proven that the government, just like the private
citizens it regulates and prosecutes, can live within the rules," the
dissenters said.

Even if the statute is applied to the government, prosecutors can
still charge anybody they want, the judges said, adding that the
statute would only limit how they could prosecute the case.

Allowing rewards for testimony ignores "the fundamental policy of
ensuring a level playing field" between the government and the
accused, the judges said.