Pubdate: Thu, 14 Jan 1999 Source: San Jose Mercury News (CA) Copyright: 1999 Mercury Center Website: http://www.sjmercury.com/ Contact: Eric E. Sterling DEAL-CUTTING INVITES PERJURY PERHAPS you were shocked when you first heard the term ``testilying,'' the term New York police officers used to describe their routine practice of lying on the witness stand in drug cases. Sadly, perjury is routinely practiced in American courts. Today, perjury is center stage in American political life, as the Senate begins the impeachment trial of President Clinton. If any witnesses are heard in this unique trial, the star would be Monica Lewinsky, who has admitted she committed perjury. Every aspect will deviate from criminal trials in American courts, with one critical exception. Routinely in drug cases and other trials, the star witness cuts a deal with the prosecution. Likewise, Lewinsky, a potential defendant, has cooperated in exchange for favorable treatment. Across America, witnesses and prosecutors engage in an awkward dance -- flirting and threatening, hinting and cajoling, offering and countering. Prosecutors signal what they want to hear; witnesses intimate who they can finger in their testimony. The juicier the testimony, the better the deal. Witness freedom is purchased with testimony. Testimony is paid for with freedom. As in so many cases, until the prosecutors made a deal with her, Lewinsky, the star witness, wouldn't snitch on the principal target. Witnesses facing criminal charges usually can't bargain from strength. Most low-level offenders, in truth, have little to offer prosecutors. The only exception to a federal mandatory minimum drug sentence is reserved for defendants who provide ``substantial assistance'' in the prosecution of others. The prospect of a mandatory sentence of 10 years or more, however, is often a powerful stimulus to the imagination. In a perversion of justice, the drug kingpins who have the best information cut the best deals by turning in their underlings and providing essential assistance to prosecutors seeking to ``smash'' a drug ring. In Washington, the House of Representatives hopes to present testimony before the Senate of an admitted liar to establish that the president is a perjurer. This is like thousands of drug cases in which an admitted drug dealer testifies for the prosecution that someone else is a drug dealer, and earns his freedom in doing so. Kenneth Starr has been criticized for setting a ``perjury trap,'' in which he obtained the immunized testimony of Lewinsky before the president testified under oath. But there is an everyday ``perjury trap'' faced by drug defendants when witnesses against them buy years off their prison sentences by testifying falsely so they can be certain to satisfy prosecutors to whom they are providing ``substantial assistance.'' A rationale of the impeachment trial is that to maintain the integrity of our system of justice, no one, not even the president, can be held ``above the law.'' But it must also be true that no one can be held ``below'' the law by unjust procedures that lead to routine dishonesty and injustice. Eric E. Sterling, counsel for the House Judiciary Committee from 1979 to 1989, was responsible for drafting the mandatory minimum sentences for drug cases in 1986. This was written for the Los Angeles Times. - --- MAP posted-by: Rolf Ernst