Harvey A. Silverglate

Tipping the scales of justice

By Harvey A. Silverglate
March 12, 2011

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IT SEEMS obvious enough: when defendants plead guilty, they’ve done the deed for which they’re accused.

In the federal criminal justice system, however, appearances often mask realities.

Endowed with enormous powers, federal prosecutors are inducing more and more defendants to plead guilty. At last report, a mere 10 percent of those accused of federal felonies asked for a trial. Are more defendants owning up to their guilt, or are there other forces producing this cascade of mea culpas?

Enter Joseph P. Lally Jr., who announced Monday that he was making a deal with the US attorney’s office to plead guilty and become a witness against former House speaker Salvatore F. DiMasi and co-defendant Richard Vitale. In connection with a federal inquiry into an alleged kickback scheme, Lally, who had steadfastly asserted his innocence, pleaded guilty to conspiracy, extortion, and mail and wire fraud. In turn, prosecutors promised to recommend that Chief Judge Mark L. Wolf impose a sentence of between two and three years, instead of the nine years he faced under prevailing sentencing guidelines. Further, the government agreed to drop a money-laundering count that otherwise could have cost the witness title to his North Reading home as well as about $30,000 in bank accounts.

But leniency comes at a price. Lally has agreed to provide testimony that will help prosecutors. The dog gets the bone only if it performs the trick.

The culture of testimony in return for rewards is now so firmly embedded that nary a brow was raised at this unseemly arrangement.

How did the system come to this, where the government can trade freedom and money for testimony? How can prosecutors be allowed, in the words of Harvard Law professor Alan Dershowitz, to “teach witnesses not only to sing, but also to compose’’?

These questions were raised some dozen years ago, when Sonya Singleton of Kansas, who was accused of money laundering and drug distribution, challenged the practice. Singleton argued that the government, by promising the witness leniency, had violated a federal statute that makes it a crime to give or promise a witness “anything of value’’ in exchange for testimony.

The issue made its way to the 10th Circuit Court of Appeals, where a three-judge panel found that there was no exception for prosecutors in the witness-bribery statute. The decision sent shockwaves through the federal criminal justice system. The Justice Department promptly sought, and received, a further review by the full membership of the 10th Circuit.

To the detriment of innocents everywhere, the full court reversed the upstart panel. It ruled that “in light of the longstanding practice of leniency for testimony,’’ it must be “presumed’’ that, had Congress intended to “overturn this ingrained aspect of American legal culture, it would have done so in clear, unmistakable, and unarguable language.’’ But, of course, that is precisely what the statute appeared to do; it did not make an exception for prosecutors who reward witnesses with lower sentences and cash incentives. The language, as the three-judge panel had noted, was unmistakably clear, providing no exceptions for prosecutors bearing gifts to witnesses.

The Singleton decision paved the path to today, where a trial before a jury of one’s peers — a citizen’s constitutional right, after all — is becoming increasingly rare. When a defendant is made an offer he feels he cannot refuse, a guilty plea and “cooperation’’ may seem the best possible option. Where innocence is no longer a defense that an accused is willing to assert, citizens — and surely the news media as well — should view with skepticism the guilt of both the witness and the vanishing breed of defendant willing to risk going to trial.

Harvey A. Silverglate, a Boston criminal defense lawyer, is the author, most recently, of “Three Felonies a Day: How the Feds Target the Innocent.’’