Court Reverses Ban on Leniency Offers

A federal appeals court Friday reversed a controversial decision that made it illegal for federal prosecutors to offer leniency in exchange for the testimony of cooperating witnesses.

In a 9-3 vote, the U.S. 10th Circuit Court of Appeals said that a ruling by a three-judge panel of the court that the practice amounts to bribery is “patently absurd.”

The panel’s decision in July sent shock waves through the federal criminal justice system, and the U.S. Justice Department said law enforcement would be paralyzed if the panel’s ruling was allowed to stand.

“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 by federal appeals courts in other parts of the country.

Prosecutors have traditionally offered leniency to some defendants to get them to testify against other defendants. Leniency can include immunity from prosecution or reduced charges and recommendations for reduced sentences.

The National Assn. of Criminal Defense Lawyers argued in November that the panel’s ruling was proper because it would have prevented prosecution witnesses from giving tainted testimony.

But Deputy Solicitor General Michael Dreeben said the panel’s decision would “paralyze the ability of government prosecutors to carry on their business as they have carried it on for many years.”

A spokesman said the Justice Department could not comment because it had not seen the decision.

The lawyer who had persuaded the panel to reach the July decision said Friday he is 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 . . . of freedom in exchange for one’s testimony,” said attorney John Wachtel of Wichita, Kan.

He represented 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.