“Everybody talks,” the prosecutor said. He was confident, strutting his stuff in the well of the court. “In the end, everyone talks,” he said again.
I felt as though I were watching a bad version of Inspector Javert, from Victor Hugo’s “Les Miserables,” a minister of justice undone, in the end, by the injustice of what the law requires.
The prosecutor was trying to explain to a jury why it should take the word of the state’s star witness, a man I called “No Way Jose” in closing arguments, against my client.
The witness came with baggage. He had already been convicted of murdering one man and had received a sentence of 42 years in prison. Pending at the time of trial were more than a dozen other conspiracy to commit murder or attempted murder charges, including a charge of manslaughter. Never mind the pending narcotics case or his criminal history of illegal firearms possession.
The state wanted the jury to convict my client of murder on the say-so of this veritable killing machine. The witness was, in the vernacular of criminal defense lawyers, a “rat,” a “snitch.” Jurists refer to such witnesses as informants or cooperating witnesses.
A great number of criminal prosecutions are built on such tainted testimony. Prosecutors like to tell juries that they don’t pick their witnesses; they take their witnesses as they find them, often neck-deep in crime.
Prosecutors turn, or “flip,” witnesses who hope to save themselves some or all of the penal consequences of their own misconduct by offering testimony against others.
Thus, in the case of “No Way Jose,” the witness was hoping to get his sentence of 42 years for murder reduced, and, when he entered pleas of guilty to the many charges he was facing, to have the time he would serve on those charges run at the same time as the sentence on the murder case.
The state was dealing with the devil, and it knew it.
Not all rats come with such dark and murderous pedigrees. Sometimes they are just venal little miscreants, as in the case of Brian Foley in the U.S. government’s prosecution of former Gov. John G. Rowland.
Foley wanted to see his wife installed in Congress. Who better to advise on how to win a seat than Rowland, the former political wunderkind who himself first won a congressional seat at the tender age of 27?
But Rowland is now a convicted felon, having served federal time for misconduct while in his third term as governor.
So, according to the feds, Foley paid Rowland a consulting fee through his nursing homes so that Rowland could advise the would-be congresswoman without Rowland’s name appearing on any federal campaign finance forms.
That’s a no-no under federal law.
Foley was facing felony charges. So was his wife. But they cut a deal with Uncle Sam. If they would testify against Rowland, the government would permit them to plead guilty to simple misdemeanors.
What’s the difference, you say? Felonies carry serious penal consequences; misdemeanors don’t.
As a matter of law, a felony is any crime carrying a sentence of one year or more. A misdemeanor, by contrast, can require imprisonment of up to one year, but no more.
In the Foley context, the witnesses were given steep discounts on the consequences of their criminal conduct for cooperating with the government and helping to bury Rowland.
Odds are, the Foleys will tap dance out of court for engaging in the same conduct that will most likely cost Rowland many years in prison.
Is that justice?
The justification for using informants is that the greater public good is served by such deals with dark forces. But, that is not always the case.
In 2009, state prosecutors relied upon the testimony of a young man named Brandon Henry to prosecute a Hartford police officer named Robert Lawlor. Lawlor shot and wounded Henry and killed another young man while in the line of duty, claiming they tried to run him over and kill him with an automobile during a narcotics stop.
The state offered Henry complete immunity for his testimony. In other words, it agreed that it would not prosecute him for any criminal conduct he had engaged in in the moments before the shooting — including narcotics possession and illegal firearms possession.
The jury acquitted Lawlor. (Full disclosure time: I later represented Lawlor in a federal action against the investigating prosecutor, Waterbury State’s Attorney John Connelly, for failing to alert an investigating grand jury of certain facts tending to show that Lawlor had committed no crime.)
Henry acquired quite a criminal resume after the immunity deal, and now faces other narcotics, assault, firearms and homicide counts. The immunity he was offered in exchange for his testimony against Lawlor does not cover these later alleged crimes.
In the broader scheme of things, I’m betting the state wishes it had not spun its wheels in the prosecution of a cop who shot and killed someone in the line of duty. Had Henry not been offered immunity for his narcotics and gun possession offenses, he probably would have been locked up and unable to assault and kill the victims of his latest crimes.
The courts are wary of informant testimony.
Judges routinely tell jurors they should use special care in scrutinizing the testimony of such a witness. After all, a man or woman swearing to tell the truth to escape the consequences of a crime has most likely not discovered religion. Sometimes, an oath is but an invitation to commit another crime: perjury. One informant, in the trial of a lawyer for money laundering, recently freely admitted to a federal jury he would lie to escape imprisonment.
How’d we make out in the case involving “No Way Jose?” The jurors could not agree on a verdict of either guilty or not guilty. As a result, the court declared a mistrial, and we will have to try the case all over again next year. “No Way Jose” will get another change to testify and perhaps save himself from decades behind bars.
“Everyone talks?” I suppose. That may be true if they are offered enough. But what a desperate witness says is suspect.