CON: Court's ruling is deeply flawed comedy of errors

Former Vice President Thomas Riley Marshall got it wrong. What this nation needs is not a really good 5-cent cigar, but a judicial version of Alexander Pope's satirical "Dunciad."

The marquee proof leaps from the pages of the recent opinion in U.S. v. Singleton (July 1, 1998) authored by a trinity of judges appointed to hand down their tablets of legal gospel from the aerie of the U.S. l Oth Circuit Court of Appeals. Writing for the panel, Circuit Judge Paul J. Kelly announced that the time-honored prosecutorial custom of promising to urge sentencing or other leniency on behalf of a suspect or criminal in exchange for testimonial coop eration in other investigations or trials is tantamount to suborning perjury in violation of the federal criminal code. Thus, according to Judge Kelly, evidence forthcoming because of such promises bears the mark of Cain and must be excluded from criminal prosecutions.

Court Ruling Jolted Lawyers and Jurists

The Singleton panel ruling was as jolting to lawyers and jurists as renunciation of Einstein's e=mc2 would be to physicists. The 10th Circuit, without prompting by the Justice Deparunent, ordered a hearing by the entire court last Friday and placed the decree in cold storage for the interim.

But let us now feast on a few of Singleton's comedy of errors sans the acidity of Pope's versifying. Federal law, 18 U.S. Code 2 section 201(c)(2) declares that "[w]hoever . . . promises anything of value to any person, for or because of [their] testimony under oath" is guilty of a crime. The interpretive.question confronting Judge Kelly was whether Congress meant "[w]hoever" to include government prosecutors when pursuing legitimate crime-fighting objectives.

As the curtain rises, Judge Kelly lectures that section 201 deserves a latitudinarian construction to "further its legislative purpose of deterring corruption." That lecture, however, is heresy to the Singleton conclusion. Prosecutors who promise to urge leniency for cooperating witnesses are not corrupting the law; they seek its vindication by truthful testimony elicited because of the promises. A cooperating witness would invite a perjury prosecution by economizing with the truth. Furthermore, any conviction obtained by the knowing use of perjured testimony would be constitutionally invalid. Finally, prosecutors must alert defense counsel to any promised indulgence to assist the jury in appraising the credibility of the cooperating witness.

Judge Kelly acknowledged twin canons that militate against application of a statute to government officers if the reading would either "work obvious absurdity" or encroach on "a recognized government prerogative" In a splendid tautology, Judge Kelly sermonized that subjecting prosecutors to section 201(c)(2) would not be absurd because no government official should be above the law. The circuit judge also insisted that the statutory policy against buying witness testimony remains undiluted when a prosecutor promises to seek leniency in exchange for cooperation in ferreting out crime. But that reasoning seems uncanonical.

In federal criminal cases, the deck is sharply stacked against the prosecutor. A conviction requires proof beyond a reasonable doubt. Verdicts require unanimity. The accused enjoys a 5th Amendment privilege against compulsory self-incrimination. Judicial errors that shipwreck prosecutions generally cannot be appealed. To offset the imbalance, Congress apparently meant to exclude prosecutors from section 201 (c) (2) to further the truth-seeking process by permitting government to reward cooperating witnesses for offering credible testimony bearing on guilt or innocence. No bribery or corruption of justice is implicated. Prosecutors who make the promises receive no personal benefit. And they hold a strong incentive to demand truthful testimony since perjury would void any conviction. The same cannot be said when a private party promises a benefit in exchange for witness testimony calculated to advance a personal interest.

Cooperation a Staple Of Law Enforcement

Finally, witness cooperation in exchange for government leniency has been a staple of federal and state law enforcement for decades. Such bargains have not fallen under moral opprobrium. They have not raised eyebrows within the legal community or legislatures. To interpret section 201 (c) (3) to denounce a major and tacitly accepted tool of criminal law enforcement seems facially obtuse, like interpreting the 13th Amendment's prohibition against "involuntary servitude" as a ban on military conscription.

That latter inanity, the Supreme Court laughed in the Selective Draft Law Cases (1918), "is refuted by its mere statement." In addition, section 201(b)(3) makes criminal any official promise of benefit to a witness "with the intent to influence [his] testimony under oath." An intent to influence testimony, however, is not required to prove a subsection (c)(3) offense.

The Singleton ruling thus transforms (b) (3) into superfluity in violation of the principle that Congress does not legislate ink blots.