RULING AGAINST TESTIMONY-FOR-LENIENCY JOLTS COURT SYSTEM

WICHITA, Kan. -- Every day in courts across the country, witnesses
take the stand in exchange for favorable treatment from prosecutors.
Some people call them informers. Prosecutors call them essential.

So it was a jolt to law-enforcement officials across the country when
a three-judge federal appeals court ruled this summer that federal
prosecutors could no longer use the testimony of witnesses, possibly
facing criminal charges, who had been promised leniency. Promises of
favorable treatment, the court said, violated the federal law
prohibiting bribery.

The decision, which some lawyers say may be the first successful
challenge under the federal bribery law to the practice of offering
witnesses leniency, a centerpiece of the legal system since Colonial
times, has triggered an unprecedented national examination in the
courts, in Congress and among legal scholars.

Since the ruling, which is now under review by the full federal
appeals court in Denver, courts in virtually every state have been
asked to bar leniency deals, bills have been introduced in Congress to
negate the effect of the panel's decision and legal scholars have been
debating whether prosecutors have grown too reliant on the use of informers.

"In the culture of this country, nobody likes a snitch, yet that has
become the crux of the criminal justice system," said Steven Zeidman,
a professor of criminal law at New York University Law School. "But
nobody likes to think about it, and now we're being forced to think
about it."

The federal bribery law says that "whoever" offers "anything of value
to any person" for testimony commits a crime. In its July 1 ruling,
the three-judge panel said that "whoever" includes federal
prosecutors.

"The judicial process is tainted and justice cheapened when factual
testimony is purchased, whether with leniency or money," the panel
said in a drug case that began here.

Within days, the ruling was annulled by the full 12-member 10th U.S.
Circuit Court of Appeals, in Denver, which decided it should review a
decision with such far-reaching consequences. The full court is to
hear the case next month.

In its original ruling, the three-judge panel ordered a new trial for
the defendant, Sonya Singleton, a 25-year-old mother of two children.
At her trial in 1997 on charges of being involved in a drug conspiracy
and money-laundering, she was identified as part of a drug
distribution scheme by a Wichita cocaine dealer, who was then given a
reduced sentence in exchange for his testimony.

Until the full appeals court decided to review the case, the ruling was
binding on all the federal courts in the six states of the 10th Circuit:
Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

But because circuit courts are second in importance only to the
Supreme Court, the ruling was seen as damaging to prosecutors
nationally. In legal papers, the Justice Department said the decision
by the three-judge panel to "make a criminal out of nearly every
federal prosecutor" was an "absurd result."

Justice Department officials here and in Washington, who are working
together on the appeal because of its national importance, declined to
be interviewed. But in their legal filings, they say the panel's
ruling could cripple prosecutors. During the short time it was in
effect, the ruling "caused chaos in the District Courts and U.S.
attorney's offices in this circuit and significant disruption
throughout the rest of the country," the Justice Department filing

says.

Justice Department lawyers said, for example, that the ruling
paralyzed organized crime prosecutions because it was unclear whether
prosecutors could rely on the testimony of crucial cooperating witnesses.

Defense lawyers said the ruling was far from absurd and exposed a flaw
in the American justice system that had been ignored too long. In an
interview here, Ms. Singleton's lawyer, John Wachtel, said prosecutors
everywhere had perverted the justice system by offering leniency to
criminals so they could win cases, even against innocent people.

In a telephone interview from a federal prison in Texas, Ms. Singleton
said it was unfair that prosecutors had a tool as potent as freedom to
offer witnesses. "Who wouldn't testify against somebody," she said,
"even if it's a lie, just so they can go home?" She says she is
innocent; she is serving a four-year term while she appeals her conviction.

The National Association of Criminal Defense Lawyers has filed a
friend-of-the-court brief urging the court to support Ms. Singleton's
appeal. And defense lawyers from coast to coast said that no topic had
received more attention this fall than the Singleton ruling. Although
the Singleton case deals only with federal prosecutors, defense
lawyers have begun to file similar challenges in many states that have
bribery statutes with provisions similar to the federal law.

Wachtel said that if the full appeals court reversed the panel's
decision, he would ask the Supreme Court to review the case.

Some legal experts say that whatever the merits of the argument in the
Singleton case, the panel's original ruling would tie the legal system
in knots because prosecutors use offers of leniency so frequently.

If the ruling is affirmed, said Roscoe Howard Jr., a professor of
criminal law at the University of Kansas School of Law, "the system
would grind to a halt." Howard, a former federal prosecutor, said that
without leniency offers, defendants would have no incentive to
cooperate and prosecutors would be forced to try every case.

"If a government attorney can't make these sorts of deals," Howard
said, "physically I don't think our court system could handle the
number of trials that would come through."

Some judges across the country have been hostile to the panel's
ruling. Since it was published on July 1, at least 16 federal courts
have published opinions after defense lawyers asked judges to bar the
testimony of cooperating witnesses. Of those, 13 of the judges said
the panel's decision was a flawed challenge to a fundamental legal
rule. Many other judges are thought to have made similar rulings informally.

In some cases, the rulings expressed fury or amazement that a court
would jeopardize so fundamental a tool. Judge Frederic Smalkin of U.S.
District Court in Maryland called the panel's ruling "amazingly
unsound, not to mention nonsensical."

Several judges have noted that in the 50-year history of the federal
bribery law, no one had apparently suggested that prosecutors were
violating the law by offering witnesses leniency. Several judges have
also said that deals with cooperating witnesses were standard practice
beginning before the Revolutionary War.

In a ruling rejecting a defense request to bar a witness' testimony,
Judge Federico Moreno of the federal court in Florida said, "The
holding of the Singleton panel would dangerously disable the
government's investigatory and prosecutorial powers."

But some federal judges have said that their job is to interpret the
law, not create it. Congress, said judges in Fort Lauderdale, Fla.,
and Knoxville, Tenn., did not exclude prosecutors when it drew up the
bribery law. Prosecutors, therefore, must be covered by the law, they
ruled.

Some judges have said that promising a defendant a reduced sentence,
no matter how common, could encourage false testimony. "Regardless of
the good faith of the individual prosecutor," said District Court
Judge Ginger Berrigan of Louisiana, "any inducement is as much if not

more a temptation to fabricate than it is to tell the truth."

Wachtel said it was to be expected that some judges would be resistant
to a new idea. Judges, he said, seem trapped in a "Well, come on,
we've been doing it forever" approach.

But he said major legal changes had often come from a single case,
like the 1966 Miranda decision, which declared that all criminal
defendants must be informed of their rights.

Wachtel, 53, said he did not know of an earlier case in which a
defense lawyer had claimed that a leniency deal was a violation of the
federal bribery law. In the Singleton case, he said, the idea occurred
to him as he struggled to defend his client against the testimony of a
cocaine dealer, Napoleon Douglas. Douglas had been a friend of Ms.
Singleton's boyfriend, who was also charged in a drug distribution
scheme that prosecutors called one of the biggest in Kansas.

Wachtel, a trial lawyer in one of Wichita's biggest law firms, was
appointed to defend Ms. Singleton because she could not afford to hire
her own lawyer. While he was working on the case, he said, he came
across an article written by a California lawyer who said that it was
unfair that prosecutors could offer incentives to witnesses but
defense lawyers could not.

When the trial of Ms. Singleton began last year, Wachtel
unsuccessfully raised the issue of the bribery statute with the
federal judge in Wichita, Frank Theis. From the bench, Theis issued an
eight-word ruling: "This statute does not apply to the
government."

Ms. Singleton was convicted and sent to prison.

Wachtel appealed and again raised the issue of the bribery statute.
The three-judge panel assigned to hear the case included the chief
judge of the appeals court, Stephanie Seymour, appointed by President
Carter, and two judges appointed by Presidents Reagan and Bush, David
Ebel and Paul Kelly Jr.

In a densely worded 18-page opinion, the panel examined precedents as
far back as the Magna Carta, which imposed limits on the exercise of
sovereign power. The law prohibiting "whoever" from offering a witness
anything of value in exchange for testimony should apply, the judges
said, to prosecutors as well as to everyone else.

"Decency, security and liberty alike," the panel said, "demand that
government officials shall be subject to the same rules of conduct
that are commands to the citizen."

Checked-by: Rich O'Grady