PERSPECTIVE ON PERJURY

Lying Is The American Way

If an admitted liar testifies to presidential perjury, compare it with
drug cases in which admitted dealers go free.

Perhaps you were shocked when you first heard the term "testilying,"
the term New York police officers used to describe their routine
practice of lying on he witness stand in drug cases. Sadly, perjury is
routinely practiced in American courts.

Today, perjury is center stage in American political life, as the
Senate begins the impeachment trial of President Clinton.

If any witnesses are heard in this unique trial, the star would be
Monica Lewinsky, who has admitted she committed perjury. Every aspect
of this trial--procedure, judge, prosecutors, jury, punishment--will
deviate from criminal trials in American courts, with one critical
exception.

Routinely in drug cases and other trials, the star witness cuts a deal
with the prosecution. The impeachment trial's sole similarity to the
typical criminal case is that Lewinsky, a potential defendant, has
cooperated with the prosecution in exchange for favorable treatment.

Across America, witnesses and prosecutors engage in an awkward
dance--flirting and threatening, hinting and cajoling, offering and
countering. Prosecutors signal what they want to hear; witnesses
intimate who they can finger in their testimony. The juicier the
testimony, the better the deal. Witness freedom is purchased with testimony.

Testimony is paid for with freedom. As in so many cases, until the
prosecutors made a deal with her, Lewinsky, the star witness, wouldn't
snitch on the principal target of the prosecution. When a co-defendant
testifies for the prosecution, the prosecutor insists they are being
truthful, but when the co-defendant testifies on her own behalf, she
is necessarily challenged as a liar.

Witnesses facing criminal charges usually can't bargain from
strength.

Most low-level offenders, in truth, have little to offer prosecutors.
The only exception to a federal mandatory minimum drug sentence is
reserved for defendants who provide "substantial assistance" in the
prosecution of others.

The prospect of a mandatory sentence of 10 years or more, however, is
often a powerful stimulus to the imagination. In a perversion of
justice, the drug kingpins who have the best information cut the best
deals by turning in their underlings and providing essential
assistance to prosecutors seeking to "smash" a drug ring. The horror
of this sordid, little known but common practice will be unveiled in a
chilling documentary, "Snitch," this evening on PBS' "Frontline."
In Washington, the House of Representatives hopes to present testimony
before the Senate of an admitted liar to establish that the president
is a perjurer. This is like thousands of drug cases in which an
admitted drug dealer testifies for the prosecution that someone else
is a drug dealer, and earns his freedom in doing so.

Kenneth Starr has been criticized for setting a "perjury trap," in
which he obtained the immunized testimony of Lewinsky before the
president testified under oath. But there is an everyday "perjury
trap" faced by drug defendants when witnesses against them buy years
off their prison sentences by testifying falsely so they can be
certain to satisfy prosecutors to whom they are providing "substantial
assistance."

Tragically, the confluence of mandatory minimum sentences and the
"substantial assistance" exception for informants has led to
unbelievably and unconscionably long sentences for minor drug
offenders. Many federal judges have condemned these sentences from the
bench and in resolutions adopted by every federal judicial council.
Judges call these cases "manifestly unjust."

A rationale of the impeachment trial is that to maintain the integrity
and respect of our system of justice, no one, not even the president,
can be held "above the law." But it must also be true that no one can
be held "below" the law by unjust procedures that lead to routine
dishonesty and injustice.

Eric E. Sterling (esterling@igc.org), Counsel for the House Judiciary
Committee From 1979 to 1989, Was Responsible for Drafting the
Mandatory Minimum Sentences for Drug Cases in 1986