Pubdate: Sat, 9 Jan 1999
Source: The Washington Post
Copyright: 1999 The Washington Post Company
Page: A03
Contact: http://washingtonpost.com/wp-srv/edit/letters/letterform.htm
Website: http://washingtonpost.com/
Author: Robert Boczkiewicz, Reuters 

COURT REVERSES BAN ON LENIENCY FOR WITNESSES

Justice Dept. Feared It Would Block Prosecutions

DENVER, Jan. 8—A federal appeals court ruled today that prosecutors can
offer plea bargains in exchange for testimony, overturning a court decision
that declared the common practice illegal.

In a 9 to 3 vote, the 10th U.S. Circuit Court of Appeals said the panel's
earlier ruling that plea-bargained testimony constituted bribery was
"patently absurd."

The panel's July 2 decision stunned the federal criminal justice system,
and the Justice Department said law enforcement would be paralyzed if the
decision were allowed to stand.

The department noted that Timothy J. McVeigh and Terry L. Nichols were
convicted in the Oklahoma City bombing based on testimony from a former
friend, Michael Fortier, who struck a deal. McVeigh's motion to delay his
appeal pending today's 10th Circuit decision was denied because he had not
raised the issue earlier. Nichols had argued that the plea-bargained
testimony ban entitled him to a new trial.

"Anybody in federal prison whose conviction was obtained wholly or in part
because of the testimony of a co-participant would have had the opportunity
to attack their conviction," said Scott Robinson, a Denver trial attorney.
He said it could have affected thousands of cases.

While the panel's decision would have applied only to the six states of the
10th Circuit -- Colorado, Wyoming, Oklahoma, Kansas, New Mexico and Utah --
the Justice Department feared the ruling might be adopted in other circuits.

In Washington, the Justice Department said it was pleased with the
decision, noting that offering leniency in exchange for truthful testimony
was "a longstanding, important aspect of the legal system."

The lawyer who had persuaded the panel to reach the July decision said he
was distressed by the reversal and will ask the Supreme Court to consider
the case. "It's hard to imagine a greater motivation to lie than an offer
from the government of freedom in exchange for one's testimony," said
attorney John Wachtel of Wichita, Kan.

In representing Sonya Singleton, who was convicted in 1997 of money
laundering and conspiring to distribute cocaine after a co-defendant
testified against her in exchange for a leniency offer from a prosecutor,
Wachtel had argued that an anti-bribery law applied to federal prosecutors.

"Statutes of general purport do not apply to the United States unless
Congress makes the application clear and indisputable," the majority
appellate judges said. But a dissenting opinion said, as the initial panel
ruling had held, that the anti-bribery law makes no exception for
prosecutors. 
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