JUSTICE DEPT TO APPEAL RULING ON TESTIMONY

Surprise decision to bar deals could stifle prosecutors

Washington

Justice Department officials said yesterday they will appeal a startling
ruling by a federal appeals court in Denver that forbids prosecutors from
promising leniency to witnesses in exchange for their testimony against
other criminal defendants.

The ruling last week challenges standard prosecutorial practice of securing
accomplices' testimony, in order to build a case against more dangerous or
important defendants.

The three-judge panel used a novel interpretation of federal law that
conflicts with decisions by her lower courts. But because the ruling now
stands as the law in western states, it has become the talk of federal
prosecutors and criminal defense attorneys around the country.

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

The department is asking the full judicial panel of the 10th Circuit to hear
the case and that the effect of the July 1 decision be postponed while the
appeal is pending. If the decision is upheld by the full 10th Circuit, whose
jurisdiction includes Colorado, Kansas, New Mexico, Oklahoma, Utah and
Wyoming, the government could petition the Supreme Court. Only if the
Supreme Court were to affirm the ruling would it affect cases nationwide.

The decision rests on the theory that promising a lesser sentence for
testimony at trial violates a federal bribery statute. Although some legal
experts said it was a good candidate for reversal, the decision nonetheless
calls into question how prosecutors operate.

The government often targets the big players in criminal wrongdoing by
offering lesser sentences to their accomplices in exchange for testimony.

"Prosecutors pay off cooperating witnesses with promises of money, soft
sentencing and promises not to prosecute at all," said Gerald Lefcourt,
president of the National Association of Criminal Defense Lawyers. "The
enormous power of the government to lock up a defendant for life, or to free
him altogether, creates an enormous incentive to lie."

But Holder said that prosecutors strive for "truthful testimony," even when
it's the product of a plea bargain or other deal. "Any responsible
prosecutor always tries to substantiate (what) any witness for the
government is going to be saying," he said.

The federal law at issue prohibits offering anything of value to a witness
for his testimony. The woman who brought the appeal, Sonya Singleton, had
been convicted on cocaine and money-laundering charges. She argued in the
10th Circuit case that federal prosecutors broke that law by promising
leniency to a witness in return for his testimony against her.

The 10th Circuit panel, in a decision written by Judge Paul J. Kelly Jr.,
said the law provides no exception for prosecutors and concluded, "Promising
something of value to secure truthful testimony is as much prohibited as
buying perjured testimony."

The panel acknowledged that the Supreme Court in a 1972 case had said that
the government must disclose at trial a promise of leniency made in return
for a witness' testimony, but rejected arguments that that ruling means
promising leniency is legal.

The panel noted that its ruling conflicts with decisions from other lower
courts and that its position was based on a reading of federal law, not any
constitutional mandate. As such, if the ruling ever were to be affirmed,
Justice Department officials said, Congress could rewrite the bribery
statute to include an exception for prosecutors.

Since the ruling last week, a high-profile case in the 10th Circuit has been
the subject of some speculation: Timothy J. McVeigh was convicted in the
Oklahoma City bombing after Michael Fortier, who cut a deal with
prosecutors, testified against him. But whether the new ruling could help
McVeigh on appeal is guesswork.

Checked-by: Melodi Cornett