HOW CAN THEY CALL THIS SYSTEM FAIR?
Often the harder sell is to suggest a reason why the witness or witnesses would be saying such terrible things about the citizen you represent. Under the Federal Sentencing Guidelines, many witnesses are testifying in the hope of obtaining a reduction in their Guideline or Minimum Mandatory sentence, either under §5K1.1 or Rule 35 of the Federal Rules of Criminal Procedure [which as well provides for a prosecutor to seek a reduction in one’s sentence, where they provide assistance after they have been sentenced].
“These days the government purchases the ‘truth’ from most cooperating witness, by paying them often large sums of cash, and by giving them something more valuable that lucre, their liberty. You can emphasize that under §5K1.1, it is not enough for such a thing to be ‘true.’ It is not enough even that the witness truly provides the prosecution with ‘substantial assistance.’ No, the witness must satisfy the whim of this particular prosecutor, because the decision of whether or not to file a 5K1.1 motion for downward departure is in his or her sole discretion. Neither his or her lawyer, I nor this Judge have any power to make them file such a motion. That is an awesome power.
The danger, gentlepersons of this jury, lies in the fact that under our current law, only one side of this dispute is allowed to pay for their testimony; only one side is permitted to purchase the ‘truth.’ How can we call an adversary system fair that allows only one side to buy testimony. What do you think they would do to you or to me, ladies and gentlemen of the jury, if you or I were to pay a witness, ten cents], much less thousands of dollars, for the truth that assisted a citizen like [my client? What do you think they would do to you or me, ladies and gentlemen of the jury if we promised a witness that we could get charges dropped or a judge to sentence them below the minimum mandatory sentence imposed by Congress if only their ‘truth’ would help out a citizen, like [my client].
Imagine the message such a one-sided law sends to those serving lengthy sentences in federal prisons across this land. Do those convicted felons learn that some ‘truth’ they may hold, a ‘truth’ that might assist a fellow citizen might in turn assist them in obtaining a reduction in their punishment. No, to the contrary, they learn providing assistance to the citizen will not do anything other than create additional problems for them. For it is only if their ‘truth’ assists the prosecution, only if their ‘truth’ meets with the prosecution’s theory of what happened that our system will reward what they come to you and say. What do you think that does to these respective parties ability to gather evidence, testimony and witnesses to support their view.
Some day, some place good people will look back on us and wonder: ‘How could you call such a system fair?’”
In a case tried long before the advent of the Federal Sentencing Guidelines, able lawyer Edward Bennett Williams brought home the dangers inherent in prosecution purchased testimony, contrasting the distinction between “truth” and “testimony” as follows:
“I want to say to you just two last things. You know, I think in life you can bargain for and buy almost everything. You can bargain for and buy mansions and villas and priceless works of art. You can bargain for and buy fine jewelry and all the creature comforts that you can conjure up in your mind.
But thank God there are some things you can’t buy and you can’t bargain for. You can’t buy and you can’t bargain for justice, because if you do, it’s injustice. You can’t buy or bargain for love, because if you do, it isn’t love that you get. And you can’t buy or bargain for truth, because it isn’t truth that you get, it’s the truth with a cloud of suspicion over it.
You can buy and bargain for testimony, and that is what the prosecution did in this case, and that is why their case is in the state it is in at the present time.
This case is styled United States…against John Connally, but I want to tell you something. The United States will win this case.
I saw one day on the wall of a courthouse, the oldest courthouse in England, the words, ‘In this hallowed place of justice the Crown never loses because when the liberty of an Englishman is preserved against false witness, the Crown wins.’
After tramping for thirty years across this country in federal courthouses all over the land, I tell you the United States never loses because when the liberty and reputation of one of its citizens are preserved against false witness, the United States wins, the United States wins the day.”