Trial, some say, is a search for the truth. That’s specious tomfoolery. In fact, trial, at least a criminal trial, is guerilla warfare. Some of the most lethal terrorists are prosecutors. Fear and the dark arts of intimidation are common tools.
Consider the case of United States versus John Rowland.
Rowland, as everyone knows, is Connecticut’s former governor. He’s already done one brief term of imprisonment for fraud and something called theft of honest services. It all had to do with receipt of funds to put a hot tub in a small cottage he owned near Bantam Lake in the state’s northwest corner.
Now he’s on his way back to prison, this time for conspiring to fail to report to federal regulators receipt of funds for work on behalf of a congressional candidate, Lisa-Wilson-Foley. Her husband, Brian, paid Rowland campaign consulting fees disguised as payment for work done on behalf of the family health-care business.
Federal law requires the disclosure of campaign related fees in the name of transparency. By playing hide the ball with some $35,000 in fees, Wilson-Foley, her husband and Rowland were accused of conspiring to commit campaign finance fraud.
The law of conspiracy casts a broad net. A person is guilty of conspiracy if he or she agrees with others to engage in unlawful conduct, and then any one of the co-conspirators performs what the law calls an overt act in furtherance of a conspiracy. An overt act is some unambiguous step designed to accomplish the ends, or objectives, of the conspiracy.
Think of a conspiracy as a form of a contract, the reflection of what the law calls a meeting of the minds. Such contracts are rarely reduced to writing. This creates a problem of proof for prosecutors. To prosecute a conspiracy, to prove a meeting of the minds, prosecutors often require the testimony of cooperating witnesses. Just how do prosecutors get that cooperation?
They do so by offering the promise of leniency to cooperators. This is where terror becomes a useful prosecutorial tool.
In the Rowland case, the government turned, or, as is said in the trade, “flipped,” Brian Foley.
No potential witness, whether co-conspirator or not, can be compelled to testify against their own penal interests. That’s the guarantee of the Fifth Amendment right against self-incrimination. A witness who admits to being a co-conspirator does just that.
The dark arts of witness intimidation pit prosecutors against defense counsel. The accused wants to avoid prison and a felony record. The government wants testimony sufficient to convict as many as possible.
A grant of immunity from prosecution is a homerun for the defense, but the government doesn’t like giving free passes to those it believes to have broken the law. For one thing, jurors are wary of immunity agreements, especially in white-collar cases. “How come he gets to break the law with impunity?” are not the words a prosecutor wants to hear about a witness.
So an elaborate charade is constructed, a game designed and intended to keep jurors from learning as much of the truth as possible. The government enters into cooperation agreements with those prepared to testify against co-conspirators.
Here’s how it works: A witness pleads guilty, typically to reduced charges. But his sentence is deferred until after the main event. In the Rowland case, Brian Foley plead guilty but was required to testify against Rowland before he himself was sentenced.
Deferring sentence permits the government to deny that the witness has been promised leniency for his cooperation. The witness is reduced merely to saying that he hopes the judge will take into account his assistance to the government when his own sentencing occurs.
Everyone in the courtroom except the jury knows the cooperator — defense lawyers call them “rats” — will get favorable treatment. Try calling as a witness the cooperator’s lawyer to ask what the witness has been told, and you’ll be barred on grounds of the attorney-client privilege. You can’t compel testimony about what a lawyer and client discuss.
Try calling the lawyer as a witness to relay what understanding he has with the prosecutor, and the judge will quash your subpoena, although why that is the case remains a mystery to me.
In the Rowland case, Brian Foley got a slap on the wrist, a brief period of home confinement, for conspiring to break campaign finance laws, a crime, the prosecution intoned at Rowland’s trial, that undermined the integrity of the republic.
Lisa Wilson-Foley, the beneficiary of this crime, refused to parrot the lines the government required to prosecute Rowland. She believed that Rowland was doing at least some work for her husband. That’s not the truth, the government contends, so the government is asking that she go to prison.
In other words, the government, not the jury, decides what is and is not true; those who disagree with Uncle Sam get clobbered.
Prosecutors tamper with witnesses daily. Tell them what the government wants to hear, and get a sweet deal. Insist that the truth is more complicated that the prosecutor’s theory of the case, and go to prison.
Juries almost never see the striking of these unholy bargains. Prosecutors and judges work to keep it that way. The general public gets the bread and circus we call justice. Defense lawyers? We just get cynical.