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Snitches' testimony undermines justice -- Convictions

Rob Warden, Chicago Sun-Times, September 26, 2004

When Scott Fawell testifies for the prosecution at former Illinois Gov. George Ryan's upcoming federal trial, he will do so under what a government informant in another case memorably called "the influence of freedom."

In exchange for Fawell's testimony, prosecutors have agreed to slash his own prospective prison time by almost half --from 11 years to 6 years -- and let off his girlfriend and co-conspirator, Alexandra "Andrea" Coutretsis, with no prison time.

Welcome to the snitch system.

It might seem that the quid pro quo violates the federal bribery statute, which provides that "whoever directly or indirectly, corruptly gives, offers or promises anything of value" to influence the testimony of a witness in any legal proceeding is guilty of a felony punishable by up to 15 years in prison.

How can prosecutors make such a deal without running afoul of a criminal statute that they would vigorously enforce against anyone else?

The answer, alas, is that the word "whoever" in the statute refers not to everyone, as lexicographers have always assumed, but rather to everyone except prosecutors -- this according to the leading case on the issue, U.S. vs. Singleton, which was decided in 1999 by the 10th U.S. Court of Appeals in Denver.

Prosecutors, the court held, are "the alter ego of the United States exercising its sovereign power of prosecution'' -- they are the nation.
The nation being "an inanimate object," it follows that, if Congress had intended the statute to cover prosecutors, it would have used "whatever" instead of "whoever." This isn't theater of the absurd. There being no federal appellate opinions to the contrary, the Singleton sophistry is the law of the land, which is hardly surprising. Snitches have been firmly embedded in the justice system from the common law forward, and appellate courts are reluctant to disturb the status quo.

In modern times, the system has spawned insider slogans glibly reflecting the reality of the system: "Don't go to the pen -- send a friend" and "If you can't do the time, just drop a dime."

To infer from such dark humor that snitches, as a class, are rotten human beings, would be unfair. Often they have merely succumbed to a veritable form of torture that few among us could withstand.

Fawell's situation makes the point. After his sentencing last year, he insisted that he had "no bomb" to drop on Ryan. When asked point-blank if the former governor had done anything wrong, he shot back, "No, absolutely not," adding, "I'm not going to go in there and make up stories about him just to save myself."

What changed? In the words of his lawyer, Jeffrey Steinback, Fawell felt "morally responsible" for dragging Coutretsis into the scandal. She faced 18 months in prison for fraud and perjury, but, as part of Fawell's deal, she'll stay home with her 2 children.

Although jurors in the Ryan trial surely will be made aware of Fawell's prior statements contradicting his latter version of the truth, experience shows that jurors tend to believe even the most odious government snitches. Prosecutors are prohibited from explicitly vouching for witnesses' credibility, but they do so implicitly.

And, because juries are the arbiters of witness credibility, convictions based on snitch testimony are seldom set aside by trial judges or overturned on appeal absent DNA or other physical evidence establishing innocence.

In political corruption cases, of course, there is no DNA. Hence, documented wrongful convictions of politicians are extremely rare. But it's a different story when it comes to violent crimes, which frequently involve physical evidence. Hundreds of wrongful convictions have been documented in the state court systems, where most violent crime is prosecuted.

The government keeps no statistics on snitches, but I recently reviewed the cases of 98 defendants exonerated after having been sentenced to death during the last quarter of the 20th century. Thirty-nine of those convictions rested to some degree on snitch testimony, showing pretty much what we would expect: that witnesses with incentives to lie are inclined to do just that.

How might the rights of the accused be better balanced against society's interest in bringing criminals to justice?

One idea would be to allow prosecutors to continue to give or promise anything under the sun to snitches for information, provided the information is solely for investigative purposes -- that is, to point to other, more reliable evidence that could then be used in court.

Keeping snitches off the witness stand would avoid the bribery issue because whatever the prosecution provided in exchange for information would not influence testimony. More important, banning snitches from the courtroom would serve the interests of justice.

(source: Rob Warden is director of Northwestern University's Center on Wrongful Convictions; Chicago Sun-Times)
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