Newsletter 19:4 December 1998
FOR ARGUMENT’S SAKE
U.S. v. Sonya Singleton
NACDL amicus brief
The following is the (edited) brief of argument filed by the U.S. National Association of Criminal Defence Lawyers (NACDL), who appeared as amicus curiae in U.S. v. Sonya Singleton, an appeal to the United States Court of Appeal (10th Circuit). The authors of the brief are identified as Norman R. Mueller, Rachel A. Bellis, David M. Porter, Timothy K. Ford and Robert S. Mahler.
Singleton was originally convicted of money laundering and conspiring to distribute cocaine. At first, a panel of the U.S.C.A. (10th Circuit) reversed her convictions, holding that the prosecuting attorney violated the so-called "anti-gratutuity statute", 18 U.S.C.§201(c)(2), when he offered leniency to a co-defendant in exchange for truthful testimony.
Following that judgment, there was a general call to arms by prosecutors across the United States, who perceived — correctly — that their ability to make patches with accomplices and co-defendants was in jeopardy as a result of the judgment.
The government then brought an application for reconsideration of the original appellate judgment, which was granted, and the matter went before the full twelve members of the Court of Appeals (10th Circuit). The full court ultimately reversed the first appeal court judgment and affirmed Singleton’s convictions, holding that the anti-gratuity statute did not apply to the government but only applied to private persons seeking to bribe witnesses.
Despite the final result in this case, and despite the fact that U.S. jurisprudence is often not applicable to Canadian criminal law, excerpts from the written submissions of the amicus curiae are thought to be worth reprinting here, if only....
for the sake of argument.
IN THE UNITED STATES COURT OF APPEAL (10TH CIRCUIT)
UNITED STATES OF AMERICA,
SONYA EVETTE SINGLETON,
BRIEF AMICUS CURIAE OF
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS AT WICHITA, KANSAS.
Case No. 96-10054-05
[Counsel for the NACDL on the brief:
Norman R. Mueller and Rachel A. Bellis, Haddon, Morgan & Foreman, Denver Col.; David M. Porter, Co-Chair, NACDL Amicus Committee, Office of the Federal Defender, Sacramento, Cal.; Timothy K. Ford and Robert S. Mahler, MacDonald, Hoague & Bayless, Seattle, Wash.]
[Table of contents, as well as table of cases, statutes and other authorities, deleted]
I.The Panel’s Interpretation of 18 U.S.C. § 201(c)(2) to Prohibit the Purchase of Testimony by Prosecutors Comports with the Languange of the Statute and Congress’ Intent and is Not in Conflict With Any Other Provision of Law.
II.The Panel’s Decision Clarifies Public Policy Without Interfering With the Government’s Ability to Dispose of Cases Through Plea Bargains and Cooperation Agreements.
Prosecutors have the ability to craft cooperation agreements which comport with the rule announced by the panel in this case. See e.g., United States v. Librach, 536 F.2d 1228, 1230 (8th Cir.), cert. denied, 429 U.S. 939 (1976) (agreement did not require witness to provide incriminating testimony and was binding on the government before witness testified, freeing him to testify without fear of reprisal). Thus, as the panel correctly reasoned, its interpretation and application of § 201(c)(2) does not interfere with the government’s ability to negotiate dispositions in criminal cases, it simply makes clear that parties may not include in those dispositions a term that buys a defendant’s testimony against another accused. In the language of contract, such a term is contrary to public policy: if testimony is what the government is after, the government cannot barter for it.
Plea and cooperation agreements are creations born of convenience and expediency. Yet they have become an essential part of the criminal justice process and are even characterized as "highly desirable" as a means to assist law enforcement investigative efforts. United States v. Pinter, 971 F.2d 554, 557 (10th Cir. 1992) (citing Santobello v. New York, 404 U.S. 257, 261 (1971). In recent years, nearly 90% of all federal cases have been disposed by plea. See United States v. Mezzanatto, 513 U.S. 196, 209 n.6 (1995) (citing the 1992 statistics from the Administrative Office of the United States Court); United States Sentencing Commission, Guidelines Manual, Ch. 1, Part A(4)(c) (November 1997).
Plea agreements and cooperation agreements are struck under a variety of scenarios, all of which are amenable to a rough contract analysis. United States v. Cooper, 70 F.3d 563, 565 (10th Cir. 1995); Pinter, 971 F.2d at 557. In a limited subset of those agreements, the defendant is required to cooperate with prosecutors or law enforcement in order to receive the benefit of the bargain. These situations are analagous to, yet sharply different from, run-of-the-mill plea bargaining. See Pinter, 971 F.2d at 557. In the eyes of both prosecutors and the accused, the dominant purpose of the bargaining in these cases is to secure cooperation: the cooperator badly needs the concessions, while the prosecutor badly needs the cooperator’s services. Graham Hughes, Agreements for Cooperation in Criminal Cases, 45 Vand. L.J. 1, 67 (1992). Far from being contracts of adhesion, the terms of cooperation agreements are fashioned individually to meet the parties’ interests.
The essence of the panel’s decision is that the government must play by the rules, and that it is not free to pursue its interests by buying witness testimony. 1998 WL 350507 at *4 (the statute "does not restrict any interest of the sovereign itself; it operates only upon an agent of the sovereign, limiting the way in which that agent carries out the government’s interests"). After all, contracts involving payments of benefits to fact witnesses for their testimony never have been sanctioned. Professor Corbin characterized such bargains as "harmful to justice:"
In extreme cases, such a bargain amounts to the crime of subornation of perjury; but many bargains made with no criminal intent are illegal because of their tendency to affect injuriously the administration of justice. A bargain to pay compensation, to a witness who is in the jurisdiction and subject to subpoena, in addition to the fees to which he is by law entitled, is illegal ... because such extra compensation is almost certain to affect the attitude of the witness and to color his testimony, consciously or unconsciously.... Doubtless, such bargains are not very effectively discouraged by merely declaring them to be illegal and unenforceable; but as in many other cases it is better than nothing....
See 6A Arthur Linton Corbin, Corbin on Contracts, § 1430 (1962). See also Restatement (2nd) of Contracts, § 73 cmt. b (1981).
The illegality of the bargain derives from the fact that every person is obliged by law to give testimony if she has knowledge of facts relevant to the matter being heard. Richard A. Lord, 7 Williston on Contracts § 15:6 (4th ed. 1997) ("As it is a duty of a citizen, when required to do so, to testify in court concerning facts within the person’s knowledge for the compensation allowed by law, a bargain to pay one who is amenable to process a further sum for attending as a witness is generally invalid, both on grounds of public policy and for lack of consideration.... [B]argains to obtain testimony for compensation conditional upon success or to pay for evidence of a certain nature desired for purposes of litigation have been similarly denounced as contrary to public policy.").
The panel correctly recognized that "the judicial process is tainted and justice cheapened when factual testimony is purchased, whether with leniency or money." 1998 WL 350507 at *6. Since defendants in criminal trials may not compensate witnesses to obtain testimony favorable to their case, it seems anomalous that prosecutors should be permitted to influence the content of a witness’ testimony through promises of favorable treatment. The only tool at a defendant’s disposal is the Sixth Amendment compulsory process doctrine—but this does not assure the defendant that the witness will provide favorable testimony once the witness is in court.
Regardless of the differences in the duties of a prosecutor and defense counsel, compensating a witness to testify involves an identical threat to the integrity of the judicial system whether the witness testifies for the prosecution or the defense. This threat is underscored by the American Bar Association’s Standards for Criminal Justice, Prosecution Function Standards governing relations with victims and prospective witnesses, which instruct that
[a] prosecutor should not compensate a witness, other than an expert, for giving testimony, but it is not improper to reimburse an ordinary witness for the reasonable expenses of attendance upon court, attendance for depositions pursuant to statute or court rule, or attendance for pretrial interviews. Payments to a witness may be for transportation and loss of income, provided there is no attempt to conceal the fact of reimbursement.
ABA Standards, Prosecution Function Standard 3-3.2(a) (3d ed. 1993). The Commentary to this section warns that the rule is intended to avoid "the risk of encouraging perjury."
Professor Hughes has opined that "corroboration requirements [ ] would be a welcome requirement in all cases of bought testimony whether or not the witness was an accomplice or the defendant," but the "small measure of assurance" added by such a requirement does not "go to the heart of the problem of how best to guard against the suspect quality of...cooperating witness testimony." Hughes, Agreements for Cooperation in Criminal Cases at 32, n.125.
This organization has championed the cause for corroboration for years and has urged legislation that would require in federal criminal prosecutions that accomplice testimony be corroborated by non-accomplice testimony and/or evidence, both before the grand jury and at trial, before it can be deemed sufficient to establish either probable cause or guilt beyond a reasonable doubt. The court need only look at any high-profile prosecution in which insiders have received "sweet deals" to testify against their confederates to recognize how destructive to the public perception of justice these bargains are. Given the myriad problems surrounding the use of accomplice testimony in criminal prosecutions, see Cynthia K.Y. Lee, From Gatekeeper to Concierge: Reigning in the Federal Prosecutor’s Expanding Power Over Substantial Assistance Departures, 50 Rutgers L.Rev. 199, 207-209 (1997) (noting that the culpable cooperating witness’ incentive to lie is exacerbated by prosecutor’s promise of leniency), it is indeed sound public policy to circumscribe the government’s ability to reward that kind of inherently unreliable testimony with government assistance in areas of charge, sentence, or security.
III.The Purchase of Testimony by Prosecutors Corrupts the Fairness of the Trial Process and Violates Professional Standards of Conduct.
Over three decades ago, Professor Abraham Goldstein commented on the "subtle erosion of the accusatorial system." Abraham S. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1199 (1960). The inherent inequalities between the prosecutor, backed by the vast resources of the state, and the individual defendant have only been exacerbated over the intervening years. The continuing attempt to exempt prosecutors from the rules that govern the conduct of all other lawyers is an important component in the continuing dangerous tilt in the criminal justice system’s balance of power in favor of the state.
In the nearly 40 years since Professor Goldstein’s warning, prosecutors’ power to investigate and charge crime and to control the sentencing decision has continued to escalate. Prosecutorial investigative techniques employing undercover operations have become more aggressive, stretching the limits of due process. Yet, courts have been reluctant to intervene, concluding that shocking and sometimes illegal conduct was not sufficiently outrageous to violate due process.
The prosecutor’s use of the grand jury similarly has resulted in increased prosecutorial power and reduced judicial oversight. The power of the prosecutor in the grand jury is virtually unlimited, since a defendant must now await conviction and establish prejudice before a claim of prosecutorial misconduct can be raised. Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988). The application of the harmless error rule to grand jury proceedings renders futile a defendant’s valid claim of prosecutorial misconduct before the grand jury. United States v. Mechanik, 475 U.S. 66, 71-72 (1986). Adding to the increased prosecutorial power is the concerted attack by prosecutors’ offices on individual criminal defense lawyers through the aggressive use of grand jury subpoenas, IRS summonses, law office searches, attempts to forfeit attorney fees, and prosecution of attorneys for obstruction of justice for giving legal advice.
The power at the disposal of the prosecutor in the charging decision also has grown due to the expansion of federal criminal jurisdiction as the number of federal crimes has multiplied, and as a result of the trend toward minimum mandatory sentencing, which has increased the leverage of the prosecutor to compel plea bargaining. The prosecutor exercises her charging discretion essentially free of judicial oversight and intervention. See, e.g., United States v. Redondo-Lemos, 955 F.2d 1296 (9th Cir. 1992) (court will not supervise the exercise of prosecutorial discretion even if that discretion is so arbitrary and capricious as to violate due process).
The most recent dramatic expansion in the prosecutors’ power is in the sentencing realm. Since the advent of the sentencing guidelines, there has been a dramatic shift from the judiciary to the prosecutor in the determination of the ultimate sentence. United States v. Gonzalez-Bello, No. 96-CR-875, ___ F.Supp. ___,1998 WL 352941 (E.D.N.Y., June 26, 1998) (transfer of authority in sentencing from judge to prosecutor especially troubling and susceptible to abuse). The prosecutors’ control of sentencing is comprised of the traditional discretion involved in the charging and plea bargaining decisions, but now is enhanced by the exclusive power of the prosecutor to seek a reduction in the defendant’s sentence for "substantial assistance," see 18 U.S.C. § 3553(e) (1988); and by the ability to use unproven allegations—even conduct for which the defendant has been acquitted—to enhance punishment under more lenient standards of proof. See United States v. Ming He, 94 F.3d 782, 788 (2d Cir. 1996) (guidelines have altered sentencing process concerning cooperating witnesses significantly diminishing power of judges); United States v. Correa, 995 F.2d 686, 687 (7th Cir. 1993) (noting judicial concerns that government’s inconsistent departure policy is often arbitrary and amounts to "simple prosecutorial expediency"). And the prosecutors’ unreviewable discretion to seek the death penalty continues to be a primary factor in the arbitrary infliction of the death penalty in this country.
One of the few checks on abuse of prosecutorial power are local state rules of professional conduct. Many states, including Kansas, have adopted the Model Rules of Professional Conduct ("Model Rules"). In turn, many federal district courts have adopted the local state rules of professional conduct.
The Model Rules offer some limited ethical guidance to prosecutors in Rule 3.8, Special Responsibilities of a Prosecutor, which deals primarily with pretrial procedure. For other areas of prosecutorial responsibility, the prosecution is admonished simply "to do justice." Rule 3.8 cmt. However, the rules governing the conduct of lawyers with witnesses are much more explicit and specific and importantly, make no distinction between prosecutors and defense counsel. Model Rule 3.4(b) provides:
A lawyer shall not: (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law. (Emphasis added.)
The comment to Rule 3.4 adds:
With regard to paragraph (b), it is not improper to pay a witness’ expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.
As the panel opinion noted, the Department of Justice has attempted, through federal regulations, "to exempt its litigators from state ethical rules prohibiting ex parte communication with represented parties." 1998 WL 350507 at *15. No similar effort has been made to exempt prosecutors from the clear prohibition of Rule 3.4(b). See 28 C.F.R. Pt. 77 (1997). Any such effort, of course, would be unsuccessful. As the panel noted, "Federal courts have unanimously rejected the notion that federal prosecutors are exempt from these ethical rules." 1998 WL 350507 at *15. And the reasoning of those cases is unassailable: regulations promulgated by the Attorney General do not preempt or supersede local ethical rules adopted by the court. See United States ex rel. O’Keefe v. McDonnell Douglas Corp., 132 F.3d 1252, 1257 (8th Cir. 1998).
The proscriptions of Rule 3.4(b) are clear and unequivocal, just like the provisions of § 201(c)(2). The policy underlying both the ethical provision and the statute is that justice is undermined by the purchase of testimony by a prosecutor. Both recognize what common sense teaches, that purchased testimony is inherently unreliable. Purchased untrustworthy testimony does not magically have its taint removed simply because the government is the buyer. Indeed, a compelling argument can be made that testimony purchased by the state, with its power to punish if it does not like what it hears, is more likely to be unreliable than any testimony purchased by any private party involved in litigation. To sanction a reward system for the purchase of testimony only when it provides assistance to the prosecution side of the criminal adversary system so substantially distorts the trial process as to deny the accused any semblance of a fair trial.
Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).
It has been noted perceptively that the confidence of the public in the criminal justice system is greatly influenced by the way the prosecutor, the system’s most visible and vocal representative, exercises his or her discretion. Deborah L. Rhode and David Luban, Legal Ethics, 322-23 (1995). Requiring prosecutors to abide by the same standards of conduct that all other lawyers are required to meet would help restore public confidence in the criminal justice system and would constitute a small step toward restoring some equilibrium in the adversarial system. The policy expressed by Congress in § 201(c)(2) and mirrored in the Model Rules is beyond dispute. Purchased testimony is unreliable and its use corrupts the fairness of the criminal justice system.
IV.The Panel Opinion, if Affirmed, Would Apply to Individuals Whose Cases Are on Direct Appeal and Who Seek Collateral Relief Under 28 U.S.C. § 2255, Subject to the Ordinary Rules of Procedural Default, the Statute of Limitations and, Where Applicable, Their Limited Exceptions.
[The arguments on this point and related endnotes have been deleted -ed.]
The policy argument that the Singleton decision signals an end to effective plea bargaining in future cases and will open the jailhouse doors to those convicted on the basis of improperly-obtained testimony is as unfounded as it is alarmist. Many, perhaps most plea agreements, are struck on the assembly line, where charge and/or sentence discounts are dependent not on the willingness of the accused to cooperate with law enforcement efforts but on the record of the offender and the circumstances of the crime. These cases are not affected in any way by the Singleton ruling. Most persons convicted and imprisoned on the strength of accomplice testimony procured in technical violation of § 201(c)(2) will not be eligible to raise a Singleton challenge to their convictions. "Apocalyptic predictions" of wide-ranging disarray and upheaval in the courts, United States v. Mazzanatto, 513 U.S. at 209, n.6, lack any empirical support.
Apocalyptic predictions frequently follow decisions that right long-held misperceptions about the proper course of the law. None of these predictions has come to pass. It was incorrectly predicted that the Nardone decision, forbidding wire tapping by government agents, would "necessarily have the effect of enabling the most depraved criminals to further their criminal plans over the telephone, in the secure knowledge that ... their telephone conversations can never be intercepted by officers of the law and revealed in court." 302 U.S. at 385 (Sutherland, J., dissenting).
It was incorrectly predicted that the court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966), would decrease the number of confessions, id. at 517 (Harlan, J., dissenting), and that its implementation would weaken law enforcement, increase the number of trials, and decrease the number of guilty pleas. Id. at 541-42 (White, J., dissenting). Instead, law enforcement and prosecutors responded to the changes in the terrain in which they operate. Richard A. Leo, The Impact of Miranda Revisited, 86 J.Crim.L. and Criminology 621 (Spring 1996). Ultimately, the Miranda decision has
exercised a civilizing influence on police interrogation behavior, and in so doing has professionalized police practices; ... transformed the culture and discourse of police detecting; ... increased popular awareness of constitutional rights, and ... inspired police to develop more specialized, more sophisticated and seemingly more effective interrogation techniques with which to elicit incuplatory statements.
Id. at 668.
Affirmance of the panel’s interpretation and application of § 201(c)(2) can be expected to have a similar positive influence not only on justice, but on the perception of justice in America.
DATED this ________ day of August, 1998.