RULING ON LENIENCY DEALS RAISES OUTCRY

WASHINGTON -- Prosecutors were working hard to build their case
against the notorious Gangster Disciples in 1996 when they hit gold:
Bertha Mosby, longtime girlfriend of gang leader Larry Hoover, agreed
to cooperate.

Mosby's help was considered so valuable in prosecuting other members
of the Midwest's most violent gang that, at prosecutors' urging, Mosby
received 5 years in prison instead of a life sentence for dealing
hundreds of pounds of cocaine.

At a court hearing, Mosby sobbed in apparent remorse, and a prosecutor
told the judge, "Miss Mosby's cooperation is unique in that she was
part of the innermost circle of Mr. Hoover." Thirty-five gang members
ultimately were convicted, including Hoover.

That sort of deal--reduced prison time in exchange for cooperation--is
struck every day in federal and state courthouses. Prosecutors
consider it an indispensable tool, and the tactic has become familiar
to any fan of television courtroom dramas.

That is why a July 1 decision by a U.S. appeals court in Denver
outlawing such deals as a form of bribery has stunned the legal community.

"If it stands, it's a bombshell, it's nuclear, it's a really big
deal," said University of Chicago law professor Albert Alschuler.

Alschuler, like most experts, expects the decision will be overturned.
But for now, the ruling stands in the six states comprising the 10th
Judicial Circuit-- Colorado, Kansas, Utah, New Mexico, Oklahoma and
Wyoming. And the ruling is being anxiously watched in the rest of the
country.

Most dramatically, the ruling could affect the fate of Oklahoma City
bomber Timothy McVeigh, who was convicted partly on the basis of
testimony from his former friend Michael Fortier, who was promised
leniency.

Two of the judges who issued the ruling also are on the three-judge
panel considering McVeigh's appeal.

The ruling already is affecting cases in other parts of the country,
including Chicago. In federal court last week, lawyers for Michael
Andreas demanded that a judge throw out some of the testimony in the
Archer Daniels Midland Co. price-fixing case because of the 10th
Circuit decision. The government has objected. Andreas, an ADM
executive, is the son of the company's chairman, Dwayne Andreas.

"The use of cooperation agreements in federal court in Chicago is not
an uncommon practice," said Randall Samborn, spokesman for the U.S.
attorney's office in Chicago. "We have built numerous successful
prosecutions of drug trafficking cases, public corruption cases and
organized-crime cases through the cooperation of defendants or people
who are operating inside these organizations."

Within the 10th Circuit, the ruling has thrown the justice system into
even greater confusion, even though the appeals court suspended
implementing its decision pending an appeal.

"We are looking at a peck of trouble here," said Nola Foulston, the
district attorney for Wichita, Kan., where the case originated. "I
wouldn't say we are all building bomb shelters, but everyone here is
scratching their heads and saying, `You have got to be kidding me.
What could they possibly have been thinking?' "

The case that is unexpectedly knocking the criminal justice system off
balance originated routinely enough in 1992, when Wichita police began
investigating a drug ring that was using Western Union to wire its
illicit funds.

A defendant, Sonya Singleton, was among those convicted as part of the
ring, and she was sentenced to 3 years and 10 months in prison.
Singleton appealed, making the seemingly long-shot argument that
prosecutors had bribed one of her co-conspirators into cooperating by

promising him leniency.

To most people's surprise and even shock, the court accepted the
argument. It declared that the prosecutors' conduct violated federal
bribery statutes as well as the Kansas code of professional conduct.

"The judicial process is tainted and justice cheapened when factual
testimony is purchased, whether with leniency or money," the
three-judge panel wrote.

Prosecutors who make deals with witnesses are not much better than
criminal defendants who try to buy them off, the court suggested.

"If justice is perverted when a criminal defendant seeks to buy
testimony from a witness, it is no less perverted when the government
does so," the judges wrote.

That notion is disputed by the Justice Department, which has appealed
the decision. When Congress wrote the bribery statutes, the department
argues, it clearly did not intend them to cover a prosecutor trying to
build a court case.

"I hope that it's not the public perception that what the government
is doing is buying testimony by striking deals with the people who
testify on behalf of the government," Deputy Atty. Gen. Eric Holder
said recently.

The 10th Circuit's action, Holder said, could wreak havoc on the
courts.

"If the decision is read very, very broadly, it could have a
wide-ranging impact," Holder said. "It goes to the way in which
prosecutors at the federal, state, local levels have conducted
themselves for a good number of years."

Foulston, the Wichita district attorney, agrees.

"Sometimes you have to lie down with the wolf, so to speak, in order
to prosecute a case," she said. "It's a scary thought that the jail
doors may be swinging wide open and letting people out because of an
opinion that says we can't offer to work with someone who may be
necessary to the case."

The court that issued the explosive ruling is one of 13 circuit courts
that handle appeals from lower courts and oversee different parts of
the country.

Illinois is part of the 7th Circuit, which includes Indiana and
Wisconsin. The circuit courts are independent of one another, though
they may take cues from each other.

Because it was a three-judge panel that issued the ruling in the 10th
Circuit, the decision could be overturned by the full 12-member court.
It also could be overruled by the U.S. Supreme Court.

Failing that, Congress could pass a law clarifying that prosecutors
may offer witnesses leniency for their cooperation.

One way or another, the ruling is likely to be overturned.

"It's probably dead in the water," said the University of Chicago's
Alschuler. "I would be willing to bet 99-1 that this decision will not
be the law in a year."

Still, defense lawyers exulted, saying the ruling confirmed an
argument they have made for a long time. If a prosecutor dangles a
reduced sentence before a defendant, they said, it is common sense
that the defendant will testify the way the government wants--even if
that means being untruthful.

"There is no question that this results in a phenomenal amount of
perjury, and any prosecutor who tells you different is lying," said
David Kopel, a scholar at the libertarian Independence Institute, and
himself a former prosecutor.

Gerald Lefcourt, president of the National Association of Criminal
Defense Lawyers, conceded the decision probably won't hold up. But he
praised the court for raising what he called an important issue.

"I hope this leads to a serious look at the dangers inherent in giving
one side these awesome powers," Lefcourt said. "Maybe they will impose
a rule that no citizen can be convicted on this type of testimony alone."

In the meantime, many lawyers are wondering how three respected
judges, including the 10th Circuit's chief judge, came up with such an
out-of-the-blue ruling. Jurisprudence, after all, usually is built on
layer upon layer of precedent.

But not always, apparently.

"The law is like everything else--there are quirks," Alschuler said.
"There are surprising things that happen. It's a human
institution."

Checked-by: "Rich O'Grady"