NO TRADING OF TESTIMONY FOR LENIENCY, JUDGE SAYS

A ruling that could prove troublesome for prosecutors and law enforcement
became law in one Florida courtroom when a Fort Lauderdale federal judge
declared on Tuesday that the government can no longer promise sentencing
leniency to witnesses in return for testimony against co-defendants.

U.S. District Judge William J. Zloch's ruling is thought to be the first of
its kind in the nation, according to Justice Department officials, defense
attorneys and legal scholars.

Zloch issued his written ruling on Tuesday, barring three men who have
already pleaded guilty to drug charges from testifying at the upcoming
trial of the remaining defendant, 73-year-old Oslet Franklin Lowery.

Even though trading lighter sentences for testimony has been an integral
part of the American criminal justice system since the 1870s, Zloch says
prosecutors are violating federal bribery laws prohibiting anyone from
buying the testimony of a trial witness.

Prosecutors have ``quite simply, purchased the testimony of the
co-defendants through promises of leniency,'' said Zloch, who issued an
oral ruling in the case two weeks ago. ``Each co-defendant, therefore, has
every reason to fabricate, falsify or exaggerate his testimony in an
attempt to curry favor with [prosecutors). . ..''

That ruling did not become law until Zloch entered his written order on
Tuesday explaining his decision.

For the short term, Zloch's ruling will create a modicum of chaos in the
South Florida federal courts because testimony that would be admissible in
some courtrooms is no longer permitted in Zloch's.

``I guarantee you, the government is very shook up by this ruling,'' said
Miami attorney Jeffrey Weiner, a past president of the National Association
of Criminal Defense Lawyers.

Adalberto Jordan, chief of the appellate division at the U.S. Attorney's
Office in Miami, said he expects to receive swift approval to challenge
Zloch's ruling from the Justice Department and Solicitor General's Office.

``We respectfully disagree with Judge Zloch's order, as we argued in
court,'' Jordan said.

So do at least two other South Florida federal judges: Federico P. Moreno
and William P. Dimitrouleas have rejected similar arguments. Several
motions seeking to dismiss or suppress testimony are pending before a
half-dozen local federal judges.

But Zloch's ruling joins a growing national debate over plea bargaining.
Defense attorneys have argued that witnesses, influenced by the hope of
obtaining immunity or a reduced sentence, will promise to testify to
anything desired by the prosecution.

On July 1, a three-judge appellate panel in Denver tossed out the money
laundering and conspiracy conviction of Sonya Singleton because the
testimony of her co-conspirators was ``purchased'' in return for
recommended sentencing leniency.

The Singleton decision, which is headed for a showdown before the U.S.
Supreme Court, set off a slew of motions by defense attorneys nationwide
seeking to suppress key testimony or dismiss entire cases.

The 10th U.S. Circuit Court of Appeals vacated the Singleton decision 10
days after it was issued, pending a rehearing before the entire panel in
November.

Zloch's ruling, like the Singleton decision, is hooked on the federal
bribery law that prohibits giving, offering or promising anything of value
to a witness for or because of his testimony.

The Justice Department has argued that Congress never intended for the law
to apply to pacts between prosecutors and defendants. But Zloch, who has a
reputation as one of the more conservative judges in a conservative
judicial district, says a ``plain language'' reading of the law doesn't
exempt prosecutors.

``If the judicial process is tainted by the admission of unreliable
testimony induced by a defendant's promises, it is no less tainted by the
identical actions of a prosecutor,'' Zloch wrote.

Several law-and-order members of Congress have reacted to the Singleton
ruling with bills that would exempt prosecutors and plea bargains from the
bribery law.

Moreno said Congress ``clearly intended to exclude plea agreements between
a defendant and a prosecutor'' and that ``government cannot be expected to
depend exclusively upon the virtuous in enforcing the law.''

While legal experts are debating whether the Singleton ruling will
seriously disable the government's investigatory and prosecutorial powers,
it could prove to be a double-edged sword for defense lawyers.

``If you want to go to trial, it helps,'' said Miami attorney Philip
Horowitz, who successfully argued to suppress the testimony against his
client, Lowery. ``If you have a client who wants to cooperate and is
willing to testify, it's going to hurt. The bottom line is I can't buy
testimony and neither should they.''

Some legal observers say the rulings are indicative of the growing
frustration among federal judges whose discretionary power has been eroded
by strict sentencing guidelines and mandatory minimum terms for drug
crimes. Some judges and defense attorneys bristle when hard-core criminals
with information to trade wind up with shorter prison terms than low-level
associates with little to barter.

``The Department of Justice does not ensure justice,'' said Weiner. ``You
have a system where the little people are getting slammed with draconian
sentences, and the higher-ups are cutting deals.''

The sentencing guidelines, enacted in 1987 as part of the War on Drugs,
have placed most of the power to reward cooperating witnesses with
prosecutors.

``Many district judges, including this one, have expressed frustration at
minimum-mandatory sentences and resulting reductions available to those who
are higher in the criminal venture hierarchy and not available to those
with little information and thus little testimony to provide,'' Moreno
noted. ``Nevertheless, Congress has maintained its position to reward
cooperation and testimony with a reduction in the sentence.''

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Checked-by: Pat Dolan