Wednesday, July 15, 1998

Judge's leniency ruling could be explosive factor

It's almost as if a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver had collected a whole bunch of dynamite, had stuck individual sticks of the stuff in the offices of federal, state and local prosecutors and had then lit the fuses.

Even that act might have been less disruptive of the criminal justice system than a ruling the other day. The court said offering leniency to criminals in exchange for their testimony against others is a violation of a federal statute.

Tempt to lie

Defense attorneys have been arguing as much, it seems, forever and a day. The federal law prohibits bribes for testimony, and the defense attorneys have said that proffering reduced charges or light sentences to obtain testimony can amount to paying for the promised words and even tempt witnesses to lie.

Courts have not accepted that line of reasoning before, though, perhaps because other judges have agreed with arguments akin to those made by a U.S. deputy attorney general. He maintained prosecutors won't use such testimony if they cannot corroborate it by other means and that it has been crucial in getting underlings to inform on their criminal bosses.

The practice is undeniably common. Taking it away from prosecutors because of a law meant to deal with different issues would remove a major crime-fighting weapon from their arsenal. The decision could apply to numerous cases in the six western states under the court's jurisdiction.

Could help McVeigh

One fear is that it could aid the appeal of Timothy McVeigh, sentenced to death in Denver in the Oklahoma City bombing because an important witness had negotiated a reduced sentence with prosecutors.

The Justice Department wants all 12 judges of the Denver court to hear the case again. If the case worked its way to the U.S. Supreme Court and was not reversed, it could then affect the entire nation. Congress could rewrite and clarify the federal law, but much havoc would already have been done.

Ultimately, the law should be rewritten to prevent future questions, but the Justice Department is right: The full Denver court should reconsider the case, and promptly, before those sticks of dynamite start exploding.