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Win at all costs
Written by Bill Moushey Part 4 of 10

The damage of lies (cont.)

Tolerated lies

The Post-Gazette found hundreds of cases over the past 10 years in which federal officers and prosecutors tolerated or encouraged perjury.

Experts in federal law enforcement aren’t surprised. Bennett L. Gershman, a law professor at Pace University of New York, continually reviews cases involving perjured testimony to update his law book, "Prosecutorial Misconduct," published in 1997. "I see a handful of cases where the court is reversing cases because of perjured testimony . . . and coming down hard on the [federal] prosecutor," he said.

His reviews also make it clear that these rulings are the exception, not the rule. "In most cases where this is happening, the lies never see the light of day. Nobody knows this is happening."

Ironically, the system encourages a toleration of perjury, because appeals courts and the Justice Department seldom punish agents or prosecutors who condone it. When defense lawyers discover perjured testimony, prosecutors usually argue in appeals that it was "harmless error," which means that no matter what the witness said, it wouldn’t have changed the jury’s verdict.

"It happens with a frequency that makes me troubled, and once you see this in a number of cases where the courts are not reversing convictions, it seems to me a prosecutor can make a considered judgment on whether or not he can get away with this," Gershman said.

Perjury has always elicited intense debate. Plato and Aristotle discussed it in their writings in the fifth century B.C. This century, the Supreme Court has elaborated on the perils of perjury in dozens of rulings, usually underscoring the dangers it poses to the integrity of a trial. "The knowing use of perjured testimony involves prosecutorial misconduct and, more importantly, involves a corruption of the truth-seeking function of the trial pro-cess," the Supreme Court stated in the 1976 ruling United States vs. Agurs.

But perjury has become a pervasive problem in federal law enforcement, in part because prosecutors often must rely on witnesses who are given very good reasons to lie. These witnesses are criminals, and in exchange for their testimony, they receive leniency and sometimes even hefty payments as government informants.

Defense attorneys say and prosecutors disagree that such rewards encourage witnesses to tailor their statements to say exactly what their benefactors want to hear. "For it to get to the point where prosecutors honestly believe that purchasing witness testimony at any cost is OK is bizarre," said Thomas Dillard, who spent 14 years as an Assistant United States Attorney in Knoxville, Tenn., then four as United States Attorney for the Northern District of Florida. He is now a criminal defense lawyer in Knoxville.

In July, in a ruling that surprised attorneys on both sides of the issue, the 10th U.S. Circuit Court of Appeals in Denver agreed. The court’s 3-0 decision, which applies to six western states, said that promising leniency to witnesses in exchange for testimony amounted to buying testimony, a violation of federal law. Judges in several other jurisdictions have already signed on to that premise.

The government has appealed, and most court observers don’t expect the ruling to stand. In addition, Congress might consider a bill that would exempt federal courts from the federal bribery statute on which the ruling is based.

But the court’s decision has served to legitimize an argument that prosecutors have long dismissed as defense attorney whining. There are supposed to be safeguards to help ensure that the testimony of witnesses who are promised leniency or other inducements is truthful. The Justice Department requires these witnesses to undergo polygraph tests and pledge to acknowledge to prosecutors information about any crime they might know about.

But the newspaper investigation found prosecutors often abandon polygraph tests or hide the results from defense lawyers so they won’t risk losing key witnesses whose stories are suspect.

No one gave Carol Smith a polygraph after she told federal drug agents that her one-time boyfriend in New York City had turned her from a fun-loving flight attendant for TWA into a depraved heroin addict who got caught smuggling drugs for him on airplanes.

Prosecutors promised her leniency in exchange for her testimony, which helped ensure that Frank DeFeo would serve 30 years in prison. But after the 1992 trial, DeFeo’s attorneys learned that Smith had lied on the stand. She had been an international drug courier for Israeli crime figures long before she met DeFeo.

She didn’t serve even a day in prison for her drug trafficking or her perjury, and prosecutors successfully fought DeFeo’s efforts for a new trial.

To ensure consistent testimony, prosecutors sometimes allow prisoners scheduled to testify at a trial to be housed together so they can rehearse their testimony and avoid contradictions on the stand. Their reward for this carefully crafted testimony is reduced prison time or even freedom.

James Carr said a federal prosecutor promised him a sentence reduction on drug charges in 1994 if he would testify in the Portsmouth, Va., drug trial of Rohan Keating. Carr said prosecutors told him to keep the deal to himself. To ensure consistent testimony, he was housed in the same cellblock as the two other key witnesses against Keating: Bernard Vick and Eddie Thurman.

Carr says prosecutors reneged on their deal with him, so he decided to tell the truth. He said Vick and Thurman lied about Keating’s involvement in a drug ring to protect their leniency deals.

Carr’s change of heart didn’t help Keating; a judge last year discounted Carr’s recanted testimony in turning down Keating’s appeal. Keating, who had never previously been arrested on drug charges, is serving 30 years in prison.

By its handling of the witnesses, the government ensured one thing: No one can be sure of Keating’s guilt or innocence.

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