THE DAMAGE OF LIES

Zeal For Convictions Leads Government To Accept Tainted Tips, Testimony

The bullet that tore into Don Carlson's thigh sent him sprawling across the
hallway floor.

After he fired two shots at his front door in a vain attempt to stop the
intruders, he dropped the gun. Carlson made it to his bedroom, punching
9-1-1 into a portable telephone as the men stormed into his house. He fell
into a corner. Twice more he was shot -- in the back. One bullet splintered
and collapsed a lung.

"Don't move, or I'll shoot you again," a man yelled.

Carlson didn't know it, but the man who shouted at him was a federal agent.
The dozen or so other officers in his house represented the Drug
Enforcement Administration, the U.S. Customs Service and the San Diego
police department and sheriff's office.

Carlson is still not sure when they realized their mistake. For 30 minutes
on that sultry August night in 1992, he lay bleeding, handcuffed and
shackled, on his bedroom floor, barely able to breathe. "Why would they do
this to me?" he recalled muttering.

Agents raided Carlson's home in the San Diego suburb of Poway in search of
2,500 pounds of cocaine. They based the search on information that an
informant named Ronnie Edmond provided. Edmond was an ex-drug dealer whom
the federal government paid $2,000 a month to inform on others in the drug
trade.

This informant frequently lied, a fact the agents knew, but they
nonetheless used his story to get a search warrant for Carlson's house.

Carlson was no drug dealer. There were no drugs in his house. He'd never
been in trouble with the law.

The informant picked Carlson's home because he thought it was vacant and
figured he could cook up another lie when the agents found no drugs.

Carlson had recently divorced, and his wife got the furniture. That's why
the house looked empty. If the consequences of Edmond's lie weren't so
serious, the episode might have been comical. Instead, it illustrates a
problem in the federal justice system that receives little attention but
has profound impact, a two-year Pittsburgh Post-Gazette investigation found.

Perjury has become the coin of the realm in federal law enforcement.
People's homes are invaded because of lies. People are arrested because of
lies. People go to prison because of lies. People stay in prison because of
lies, and sometimes, bad guys go free because of lies.

Lying has become a significant problem in federal court cases because the
rewards to federal law enforcement officers can be so great and the
consequences so minimal. Perjurers are seldom punished; neither are the law
enforcement officers who ignore or accept their lies.

Carlson believes some of the agents who stormed his house wanted to kill
him to cover up the informant's lies but couldn't risk it because so many
agents from different jurisdictions were there. "The only thing that saved
me was that there were too many agencies involved."

Federal officials would not respond to requests for comment on the case.

Tolerated Lies

The Post-Gazette found hundreds of cases over the past 10 years in which
federal officers and prosecutors tolerated or encouraged perjury.

Experts in federal law enforcement aren't surprised. Bennett L. Gershman, a
law professor at Pace University of New York, continually reviews cases
involving perjured testimony to update his law book, "Prosecutorial
Misconduct," published in 1997. "I see a handful of cases where the court
is reversing cases because of perjured testimony . . . and coming down hard
on the [federal] prosecutor," he said.

His reviews also make it clear that these rulings are the exception, not
the rule. "In most cases where this is happening, the lies never see the
light of day. Nobody knows this is happening."

Ironically, the system encourages a toleration of perjury, because appeals
courts and the Justice Department seldom punish agents or prosecutors who
condone it. When defense lawyers discover perjured testimony, prosecutors
usually argue in appeals that it was "harmless error," which means that no
matter what the witness said, it wouldn't have changed the jury's verdict.

"It happens with a frequency that makes me troubled, and once you see this
in a number of cases where the courts are not reversing convictions, it
seems to me a prosecutor can make a considered judgment on whether or not
he can get away with this," Gershman said.

Perjury has always elicited intense debate. Plato and Aristotle discussed
it in their writings in the fifth century B.C. This century, the Supreme
Court has elaborated on the perils of perjury in dozens of rulings, usually
underscoring the dangers it poses to the integrity of a trial. "The knowing
use of perjured testimony involves prosecutorial misconduct and, more
importantly, involves a corruption of the truth-seeking function of the
trial pro-cess," the Supreme Court stated in the 1976 ruling United States
vs. Agurs.

But perjury has become a pervasive problem in federal law enforcement, in
part because prosecutors often must rely on witnesses who are given very
good reasons to lie. These witnesses are criminals, and in exchange for
their testimony, they receive leniency and sometimes even hefty payments as
government informants.

Defense attorneys say and prosecutors disagree that such rewards encourage
witnesses to tailor their statements to say exactly what their benefactors
want to hear. "For it to get to the point where prosecutors honestly
believe that purchasing witness testimony at any cost is OK is bizarre,"
said Thomas Dillard, who spent 14 years as an Assistant United States
Attorney in Knoxville, Tenn., then four as United States Attorney for the
Northern District of Florida. He is now a criminal defense lawyer in
Knoxville.

In July, in a ruling that surprised attorneys on both sides of the issue,
the 10th U.S. Circuit Court of Appeals in Denver agreed. The court's 3-0
decision, which applies to six western states, said that promising leniency
to witnesses in exchange for testimony amounted to buying testimony, a
violation of federal law. Judges in several other jurisdictions have
already signed on to that premise.

The government has appealed, and most court observers don't expect the
ruling to stand. In addition, Congress might consider a bill that would
exempt federal courts from the federal bribery statute on which the ruling
is based.

But the court's decision has served to legitimize an argument that
prosecutors have long dismissed as defense attorney whining. There are
supposed to be safeguards to help ensure that the testimony of witnesses
who are promised leniency or other inducements is truthful. The Justice
Department requires these witnesses to undergo polygraph tests and pledge
to acknowledge to prosecutors information about any crime they might know
about.

But the newspaper investigation found prosecutors often abandon polygraph
tests or hide the results from defense lawyers so they won't risk losing
key witnesses whose stories are suspect.

No one gave Carol Smith a polygraph after she told federal drug agents that
her one-time boyfriend in New York City had turned her from a fun-loving
flight attendant for TWA into a depraved heroin addict who got caught
smuggling drugs for him on airplanes.

Prosecutors promised her leniency in exchange for her testimony, which
helped ensure that Frank DeFeo would serve 30 years in prison. But after
the 1992 trial, DeFeo's attorneys learned that Smith had lied on the stand.
She had been an international drug courier for Israeli crime figures long
before she met DeFeo.

She didn't serve even a day in prison for her drug trafficking or her
perjury, and prosecutors successfully fought DeFeo's efforts for a new trial.

To ensure consistent testimony, prosecutors sometimes allow prisoners
scheduled to testify at a trial to be housed together so they can rehearse
their testimony and avoid contradictions on the stand. Their reward for
this carefully crafted testimony is reduced prison time or even freedom.

James Carr said a federal prosecutor promised him a sentence reduction on
drug charges in 1994 if he would testify in the Portsmouth, Va., drug trial
of Rohan Keating. Carr said prosecutors told him to keep the deal to
himself. To ensure consistent testimony, he was housed in the same
cellblock as the two other key witnesses against Keating: Bernard Vick and
Eddie Thurman.

Carr says prosecutors reneged on their deal with him, so he decided to tell
the truth. He said Vick and Thurman lied about Keating's involvement in a
drug ring to protect their leniency deals.

Carr's change of heart didn't help Keating; a judge last year discounted
Carr's recanted testimony in turning down Keating's appeal. Keating, who
had never previously been arrested on drug charges, is serving 30 years in
prison.

By its handling of the witnesses, the government ensured one thing: No one
can be sure of Keating's guilt or innocence.

Odd lessons

In a peculiar way, perjury demeans the justice system in the eyes of the
people whom it punishes. David Hairabedian learned that lesson. In 1991,
Hairabedian, then 24, was sentenced to prison for his role in attempting to
steal airplanes in the United States at the behest of Colombian drug dealers.

There was no question that the Independence, Mo., man was involved. He
pleaded guilty to that and other charges relating to the sale of cocaine.
But the leader of the airplane theft ring, Christopher Bailey, told the
court that Hairabedian had directed the operation and had pocketed most of
the money and drugs the thieves received in payment.

Bailey's testimony meant Hairabedian received 22 years in prison, about
twice the sentence an underling in the operation would have received. For
cooperating with prosecutors, Bailey went free.

46rom the start, Hairabedian had told federal agents that Bailey was the
operation's ringleader. He told them the Colombians paid Bailey $200,000 in
cash and cocaine, not the $5,000 he testified to in court.

Hairabedian said Bailey lied to federal prosecutors simply to save his
skin. Federal prosecutors said Hairabedian's comments were the self-serving
lies of a desperate man.

Almost nine years later, everything Hairabedian said turned out to be true.
An FBI agent and an assistant U.S. attorney, who had known of the deception
for years, corroborated Bailey's role as head of the theft ring and his
perjury in Hairabedian's trial.

Federal prosecutors continue to fight Hairabedian's effort to get a new
hearing on his sentence. Bailey finally went to prison, but it wasn't for
being the ringleader of the theft ring. He served less than a year for his
perjury. Not a bad trade-off, Hairabedian said.

Hairabedian is serving a 22-year sentence. He manages a Christian ministry
in prison and says he isn't interested in special treatment, just fair
treatment.

That can sometimes be difficult to find in federal court.

Lying Victories

The result of the tolerance for perjury is that the liar almost always wins.

In a Nebraska case earlier this year, a paid federal informant set up
cocaine deals among workers in meat-packing plants near Lincoln then lied
about his past in court. Federal Prosecutors didn't tell defense attorneys
he had a criminal record, that he was an illegal alien or that the
government was paying him.

The defendants didn't learn of the government's deceit until after they
were sentenced to prison. The witness admitted his past at another trial
before a different prosecutor.

The result: The illegal alien was given permanent status in the United
States even as the individuals he testified against were convicted. They
have filed appeals based on his perjured testimony, stating the government
knew about the witness's lies but allowed him to testify anyway, with no
fear of repercussions.

More Promises

It's not always federal law enforcement officers whose promises might
result in fabricated testimony.

Ricardo Bilonick had more than a million reasons to tell jurors exactly
what prosecutors wanted to hear. He was the former head of the Panamanian
air carrier called INAIR. In 1995, he faced charges of being a key player
in the Medellin drug cartel with former Panamanian leader Manuel Noriega,
but Bilonick worked out a plea agreement with prosecutors whereby he'd
testify against Noriega in exchange for a light prison sentence and a
ticket out of the country.

Noriega's attorneys knew that. What they didn't know was that the Cali
cartel, the deadly rivals of the Medellin drug cartel, paid Bilonick $1.25
million for testifying against Noriega.

Prosecutors insisted they knew nothing of the deal during the trial, a
notion defense attorneys found laughable. In an appeal, defense attorneys
maintained that the government violated Noriega's due process rights when
it failed to correct this false and highly misleading testimony.

"The conduct of the prosecutors in this case is so reprehensible, so
lacking in moral compass, that it nearly defies rational analysis," defense
attorneys Frank Rubino, Jon May and Olga Ruiz argued in one motion filed in
1995.

The 11th U.S. Court of Appeals sided with prosecutors, barely. "Although
the government appears to have treaded close to the line of willful
blindness, the crossing of which might establish constructive knowledge, we
decline to charge the government with prior cognizance of the alleged
payment."

In denying Noriega's appeal, the court also ruled that the disclosure about
Bilonick would not have changed the result of Noriega's trial. Noriega has
14 years remaining in his sentence at the Federal Correctional Institution
in Miami.

The lies just meant Noriega got what he deserved, some could argue.

But no one could say that about Don Carlson, who almost died in his
Southern California home because federal agents shot him based on an
informant's lie.

Rocky Recovery

Carlson has recovered from his gunshot wounds, at least physically.

He spent a year in rehabilitation before moving from California to a gated
community north of Dallas. He is still single. He doesn't have to worry
about money; he sued the government for $20 million because of the botched
drug bust and shooting spree at his home then settled for $2.7 million.

Carlson doesn't believe the amount of money he got was excessive. His life
in California was destroyed, as was his faith in federal law enforcement.
He will never understand how federal agents could rely on a known liar and
criminal as the basis for a search warrant, enforced with blazing guns, of
his home. "[Edmond, the government informant,] was a low-level street
dealer, part-time criminal who created this thing to get money from them,"
said Carlson. "He was basically extorting the government."

Nor can Carlson believe the federal government's arrogance. Even after
agents admitted he wasn't a drug dealer, they threatened to charge him with
the attempted murder of a federal agent, a crime punishable by 10 years in
prison, despite the fact the bullets he fired didn't even pierce his front
door.

Federal officials made it almost impossible to find out what actually
happened that night. A federal judge sealed the search warrant for his home
"because of an on-going investigation," Carlson said.

Carlson's lawyer finally filed suit in December 1992, while Carlson, a
computer company executive, was still struggling through the intensive
rehabilitation that began after his lungs started functioning on their own
again. For about eight weeks, he had needed a machine to keep him alive.

The government promptly went into its "hibernation mode," failing to
respond to any court papers until a judge ordered it to do so, Carlson said.

After two more years of contentious negotiations, Carlson agreed to a
settlement in 1995. It did not include an apology. "They would not admit
they made a mistake," he said. "All they said was that they were a victim
of circumstances."

Carlson said he finally agreed to take money -- about $1 million for each
gunshot wound -- because "that was the only way I could make a statement to
them. The government wears you down. It was never about money; it was
always about making them accountable, but that was never going to happen."

Edmond, the informant who lied about the drug stash in Carlson's house, was
charged with a variety of false swearing and perjury charges and sentenced
to a prison term, which he is still serving.

No one else was disciplined.

Carlson, now 46, retired from his company. After six years, he again can
sleep soundly. The only remnants of his injuries are a damaged diaphragm
and a problem with his leg due to the gunshot wound. He said doctors have
told him the injuries almost certainly will shorten his life.

Carlson said he doesn't like to talk about the incident but does so because
he fears the same thing might happen again. "I have continued to do this
and will continue to do it because I have this hope that someday, somebody
will do something to make something change," he said.

He shakes his head as he speaks and admits that he doubts his words.

Checked-by: Richard Lake