The born-again individualist: Fox News Channel's Judge Andrew Napolitano on lying cops, out-of-control government, and his bestselling new book, Constitutional Chaos

Reason, March, 2005 by Nick Gillespie

The government routinely bribes witnesses by giving them something of value in order to influence the witness's testimony. It could be paying the witness's bills--alimony, rent, or mortgage. It could be a direct cash payment to the witness. It could be, and this is the most typical way, forgiving the witness a crime he has committed. When the government does that, it perverts the intellectual integrity of the trial process. It no longer becomes a search for truth. This tactic is of a post-World War II vintage. It is now taught in law schools as well as specialized schools for prosecutors that the government runs.

The government does that for two reasons. One, I think it honestly believes, and there's a lot of data to support this, that if you cut the head off [of a criminal enterprise], you're going to destroy the organization. The second is that a lot of prosecutors are interested in victory, not truth, and they're interested in a high-profile victory because it enhances their own careers and their own standing in the law enforcement community.

One of the most extreme examples involves Sammy "The Bull" Gravano. He testifies against mobster John Gotti. Sammy admits to 19 murders. Nineteen! Gotti is charged with conspiracy to commit one. The government forgives 19 of Sammy's in order to get him to say what the government wants him to say about Gotti. How do we know that he was telling the truth? His incentive to please those who are bribing him is an absolutely irresistible temptation to be forgiven 19 murders and to wipe the slate clean.

reason: That story has a really happy ending, too, right?

Napolitano: Gotti's convicted, and he dies in jail. Gravano enters and then leaves the witness relocation program and goes back to a life of crime. He imports Ecstasy from the Middle East, and he's now serving 20 years. He couldn't take freedom.

reason: I hate to harp on cases involving Italians, Judge, especially since my mother's maiden name was Guida. But let's talk about the Philly mobster Little Nicky Scarfo.

Napolitano: The government devised a way to insert software into Little Nicky's laptop computer that would record every keystroke he made. Generally, if the government is interested in some document in that computer that it believes is evidence of a crime, it can go to a federal judge, present its evidence--we call it "probable cause"--and get a search warrant. That wasn't good enough for the government. The government wanted to capture every one of Nicky's thoughts on everything, every single keystroke. So the government persuaded a federal magistrate to issue a warrant for that. Then it devised this software and persuaded the judge to allow the government to break into his home and make it look like a robbery. They break in. They put the software in his laptop. He comes home. He calls the local police. The FBI has not told the local police, so everybody thinks it's a break-in.

Ultimately, of course, it develops that they have recorded all of his keystrokes. They now say to him, "Look at what we've got on you. Spill the beans or we'll spill all of this." Nicky had some pretty bright lawyers that said, "Hmmm, how'd you get that information? We'll spill the beans on this new software." The government recoiled and said you can't reveal the software because of "national security." He eventually pleaded guilty to a low-level crime. It was a deal that the government cut. They didn't realize that by doing this to Nicky they would expose this means of law enforcement--burglary and seizing a lot more than any search warrant constitutionally could offer.