US court takes up role of 'snitch' testimony

Today, 12 black-robed federal judges here take up a case that, even by the standards of dispassionate legal observers, has the potential to throw America's entire criminal-justice system into a tailspin.

At issue: testimony that criminals give against accomplices in exchange for lighter sentences for themselves.

The judges are set to hear arguments on whether such testimony - which critics charge is "bought" but backers say is a cornerstone of American jurisprudence - violates a defendant's right to a fair trial.

Trading leniency for testimony is "a practice that's so deeply embedded ... that we can't imagine a criminal-justice system without it," says Marianne Wesson, a University of Colorado law professor and former federal prosecutor. "The truth is that this practice is relied on by both sides, and defense attorneys as much as prosecutors would have to utterly reinvent themselves [if the court decides it is impermissible]."

Brouhaha of July

The time-honored practice was thrust into the spotlight in July, when three of the judges on the 10th US Circuit Court of Appeals here ruled it violated federal law. Under the US bribery statute, they said, federal prosecutors are prohibited from exchanging "something of value" for testimony - and they said prosecutorial leniency is in that category.

Then, amid the ensuing uproar and a vehement protest from the US Justice Department, the court voided its opinion pending a new hearing before the full 12-judge panel. Even so, defense lawyers nationwide are referring to the case in court motions, and a US district judge in Florida, citing the opinion, has thrown out at least three such plea deals.

To the government, striking deals with accomplices and co-defendants in exchange for testimony is vital to making arrests and obtaining convictions. Estimates are that as many as 90 percent of federal cases involve some use of the practice. (In state courts, it's less common.)

"The reality is that in a lot of cases, the key evidence is coming from insiders," says a US Justice Department source. "That's the nature of crime. In many cases, it may be the only evidence."

Federal prosecutors also bristle at suggestions that plea deals amount to a legalized form of bribery. "The implication is that in some way we are flavoring this testimony - that's what's most offensive to us," says the Justice Department source, who requested anonymity.

But more is at stake than protecting evidence that produces convictions, say critics of the practice. One concern is that pervasive use of "snitch" testimony rewards some defendants, while robbing others of a fair trial.

"You have the lowest level people doing the hardest amounts of time because they don't have anything to snitch - they don't know anything," says David Lane, a criminal defense lawyer here. "The ones who are most culpable get the deal. It's wrong."

They also debate whether such testimony is truthful, or merely reflects what a snitch believes will bolster the prosecution's case.

"You are bribing people to say what you want them to say," says Mr. Lane, who regularly defends clients in the federal system. "These snitches understand their freedom is dependent on how much of a case they can make against someone else."

Plea deals have been commonplace in federal courts for decades, but their use has escalated since 1987, when revised federal sentencing guidelines limited a judge's discretion.

Congress has promised to introduce legislation, if necessary, to exempt plea bargaining from the bribery statute. But that idea, too, raises concerns - even among prosecutors.

"Someone could say that the statute must have been broken if Congress needed to fix it," says the Justice Department source. "That could put all the rulings [that occurred] before the revision open to appeal."

No flood of appeals

On the other hand, even if the ruling stands it should not affect earlier cases. Federal criminal law stipulates that new rulings apply retroactively only to cases pending trial or on direct appeal; all others would be unaffected.

The case before the court today stems from a Wichita, Kan., drug conviction, which the three appellate judges reversed.

Despite the controversy over the issue, few can conceive of a justice system without plea deals.

"Plea bargaining is the foundation of the justice system in the federal system," says Jenine Jensen, assistant federal public defender in Colorado, who expects the issue may eventually end up at the Supreme Court. "[Eliminating] it would throw the whole system into a tailspin."