U.S. Court Outlaws Promise of Leniency to Witnesses

A federal appeals court has ruled that it is illegal for the government to promise leniency to witnesses in exchange for testimony, a decision that could hamstring prosecutors and help Oklahoma City bomber Timothy J. McVeigh in his appeal.

The U.S. 10th Circuit Court of Appeals said in a 3-0 ruling Wednesday that the practice amounts to buying testimony.

The court said its decision will not “drastically alter” the government’s practices, but prosecutors and defense lawyers disagreed.

“We have said for 40 years, if you say to somebody in criminal trouble, ‘I’ll give you a free pass, or I’ll let you go if you tell me the story I want to hear,’ they’ll tell you whatever they need to say to get out of trouble,” said Denver defense attorney Larry Pozner.

The decision could have implications for McVeigh’s appeal, since the government’s star witness in the Oklahoma City bombing case, Michael Fortier, testified against McVeigh after cutting a deal with prosecutors. Two of the judges who made the ruling, Circuit Judges Paul J. Kelly Jr. and David M. Ebel, are assigned to McVeigh’s case.

He has been sentenced to death for the April 19, 1995, bombing that killed 168 people.

Mike Norton, former U.S. attorney in Denver, said that if the appeals court’s decision stands, it will have “a tremendously negative impact on the government’s ability to investigate and prosecute crimes by groups: conspiracy, drug trafficking, money laundering, securities fraud . . . “

Norton said prosecutors routinely work their way up the chain of command in a criminal organization, offering immunity or plea bargains to lower-level participants in exchange for testimony against their superiors.

Kelly said such deals violate federal law.

“The government may still make deals with accomplices for their assistance other than testimony, and it may still put accomplices on the stand; it simply may not attach any promise, offer or gift to their testimony,” the court said.

The ruling came in the case of a Wichita, Kan., woman who allegedly was part of a cocaine trafficking ring. Her conviction was based in large part on the testimony of another person involved in the conspiracy, Napoleon Douglas.

The appeals court said Douglas was promised leniency. Leniency is something of value, wrote the court, and therefore illegal as part of a deal for testimony.

The government did not specifically tell Douglas that it would seek a reduced sentence, but promised it wouldn’t prosecute him for other offenses and would tell the sentencing judge and parole board about his cooperation, the court said.

“The obvious purpose . . . was to reduce his jail time, and it is difficult to imagine anything more valuable than personal physical freedom,” Kelly said.