MAKING SURE THE AGENTS OF JUSTICE LIVE WITHIN THE LAW

Some irate judges have struck down a ruling that limits federal
prosecutors' freedom to offer witnesses a deal. But should any testimony be
bought?

Reynolds Holding

It would, they told us, be the death of law enforcement, a court decision
so ``heavy-handed and one-sided'' that in countless cases it would ``return
a killer or rapist to the streets . . . to repeat his crime when it pleases
him.''

``As a consequence,'' they warned, ``there will not be a gain, but a loss,
in human dignity.''

The doomsayers: John Harlan, Potter Stewart and Byron White, justices of
the U.S. Supreme Court, dissenting 33 years ago to Miranda vs. Arizona, the
bitterly criticized decision that ordered police to advise a criminal
suspect of the right to clam up and get an attorney.

They were wrong, of course. Human dignity survived. The crime rate dropped.
Rapists and killers regularly went to prison. Police officers adapted to a
system deprived of brutish interrogation as a standard tactic.

And yet it was as if we were hearing Harlan, Stewart and White again this
month, when nine judges of the U.S. Court of Appeals in Denver scolded
three colleagues for ruling that federal prosecutors may not buy testimony.

This time, though, the righteous scolds prevailed.

On January 8, the full court of appeals overruled a three-judge panel that
in July had committed the unconscionable mistake of adhering to the clear
words of a federal anti-bribery statute:

``Whoever . . . gives, offers or promises anything of value to any person,
for or because of the testimony under oath . . . shall be fined under this
title or imprisoned for not more than two years, or both.''

The panel had ruled that the statute covered federal prosecutors who
promised something of clear value -- leniency -- to a criminal accomplice
in exchange for his testimony. But the full court, hearing the case on
appeal, saw ineffable danger in this compelling logic.

Prosecutors would be stripped naked before the onslaught of illegality.
Criminals by the thousands would go free. The justice system would freeze
up like a rusted Model T.

No matter what the statute said, it had to be interpreted to avoid, in the
full court's words, ``a radical departure from the ingrained legal culture
of our criminal justice system.''

Translation: Prosecutors must buy testimony because they have always bought
testimony.

The court, of course, did not put it quite that way, saying instead that
the word ``whoever'' refers only to people and therefore could not include
the federal government as personified by federal prosecutors.

This, as three dissenting judges on the 12-judge panel pointed out, was
nonsense. ``Whoever,'' they artfully explained, ``means whoever'' --
institutions as well as humans. And the full court, said the dissenters,
had grossly overstated the importance of exchanging leniency for testimony.

Being clever people, prosecutors could find plenty of ways to comply with
the statute while wheedling cooperation from criminal accomplices, the
three judges said. Like trading leniency for information and assistance
before trial. Or prosecuting the accomplices first, then compelling their
testimony by subpoena.

``The government, just like the private citizens it regulates and
prosecutes, can live within the rules,'' the judges said.

But there are two, more basic, truths here.

One is that prosecutors shouldn't be allowed to buy testimony with
leniency, because bought testimony is inherently unreliable. No big
surprise, but a guy facing time in prison probably won't hesitate to say
whatever prosecutors want to hear if it will knock a few years off his
sentence.

Don't think it happens?

Ask San Francisco attorney Patrick Hallinan. Prosecutors charged him with
money-laundering and other crimes, promised his former client Ciro Mancuso
various favors to be their primary witness, then lost the case when Mancuso
proved, shall we say, less than persuasive on the stand.

Or E. Robert Wallach, another San Francisco lawyer, whose federal
convictions were overturned because the government's main witnesses against
him flat out lied on the stand.

Allowing the feds to trade favors for testimony not only works injustice
but undermines any faith the public may still have in the fairness of
federal prosecutions.

Congress undoubtedly recognized this when it barred ``whoever,''
prosecutors and defense lawyers alike, from buying testimony. And for
courts to assume that it didn't mean what it said is arrogant and contrary
to a principle blessed by even the most hard-core conservatives: that
courts should interpret the law, not make it.

The outcry against the Miranda decision emerged from legitimate concern
over a novel and by no means obvious interpretation of the Constitution.
Here, criticism of the three-judge panel's decision derives from little
more than fear of applying the law's plain meaning.

Talk about judicial activism.

The controversy won't end with the Denver ruling. It is percolating through
other courts of appeal as well -- including the maverick U.S. Court of
Appeals in San Francisco, which can almost be counted on to issue an
opinion provoking U.S. Supreme Court review.

Then, 33 years after the Miranda ruling, the justices could tell us whether
the criminal justice system can still play by the rules and survive.