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HARVEY A. SILVERGLATE

Disturbing steps by prosecutors

HERE'S THE TACTIC used to prosecute suspected crime in the suites (Martha Stewart and Enron come to mind): Grab, squeeze, and "turn" a vulnerable midlevel employee into a witness against higher-ups in exchange for leniency. Witnesses squeezed hard enough have much to gain doing a prosecutor's bidding. Nevertheless, the public holds its collective nose, succumbing to the argument that the government needs such techniques to "climb the ladder" and convict highly placed corporate criminals.

 

In recent "white collar" prosecutions, uneasiness with these techniques seems increasingly justified. Consider the Stewart trial. The government's chief witness, office assistant Douglas Faneuil, initially confirmed his boss Peter Bacanovic's and Stewart's innocent explanation for the suspicious timing of her ImClone share sale. Only later did Faneuil change his rendition, making a deal with the feds to testify that Bacanovic and Stewart concocted a cover story. Faneuil faces a maximum one-year sentence. Bacanovic and Stewart face 25 and 30 years, respectively. Has Faneuil agreed not only to sing, but also to compose? Presumably that's what the jury will decide when it weighs the impact of his plea bargain on his credibility.

Whatever discomfort one feels with Faneuil's deal pales compared to how the Department of Justice's Enron Task Force gained the testimony of former Enron CFO Andrew Fastow. Prosecutors threatened to indict both Andrew and his wife Lea, parents of two young boys. If both father and mother were convicted of felonies carrying long prison sentences, the boys would become, in effect, orphans. So a deal was cut: Andrew would "cooperate" in nailing former chief executive Jeffrey K. Skilling and chairman Kenneth L. Lay.

In exchange, he would plead guilty to two felonies and receive a 10-year sentence, subject to reduction after his testimony. Furthermore, 96 other charges would be held in abeyance, and prosecutors would decide, again after his testimony, whether his "cooperation" justified dismissing those. (He thus would testify with this Sword of Damocles hanging over his head.) Lea would plead guilty to a lesser offense and receive a 5-month sentence.

If prosecutors deemed the father's cooperation sufficient, they would arrange for the mother to be released before the father commenced his sentence, preventing the boys from having both parents imprisoned at once. Holding children hostage provides a powerful parental incentive.

This tactic of holding loved ones hostage to guarantee loyalty or obedience has been used throughout history: by Roman emperors, who kept the children of neighboring kings under guard in Rome; by medieval kings like England's Henry IV, who took Scottish King Robert III's son James hostage to prevent the Scots from rebelling; and most recently by former Iraqi dictator Saddam Hussein, whose torturers would victimize a prisoner's family members if the prisoner himself refused to talk. Targets of this technique, rather than see their children subjected to torture, confess to crimes they never committed or implicate the innocent.

If interrogators subjected a witness to electrical shocks, a judge would bar the jury from hearing his confession or testimony. But, in their ability to corrupt the truth-seeking process, are electrical shocks really that different from hostage-taking? Is it really sufficient, as current practice dictates, merely to inform jurors of these pressures and let them decide who's telling the truth? Or will the courts do something about these increasingly coercive tactics?

The signs are not good. When the Fastow plea bargain was announced, there was nary a cry of outrage. Indeed, reporters and columnists seemed thrilled that, as prosecutor Leslie Caldwell told The New York Times, "for the first time, the Enron task force has a seat on the 50th floor" of Enron's headquarters.

Nor is it likely that any court would find these threats or rewards aimed at government witnesses as a shock to the conscience or violate any law. In 1999, a federal appellate court ruled that prosecutors who offered sentencing benefits to a witness for his testimony were exempt from the federal anti-gratuity statute, which imposes a prison sentence on anyone who "directly or indirectly, gives, offers, or promises anything of value to any person" in exchange for trial testimony. Why do prosecutorial witness inducements not violate this law? "While we agree with that notion [that "the government is not above the law"]," intoned the 10th Circuit Court of Appeals, "we simply believe this particular statute does not exist for the government." The implications of this double-standard -- that prosecutors may use tactics that would land another citizen in prison -- do not bode well for confidence that only the guilty are prosecuted.

Harvey A. Silverglate is a Boston-based criminal defense and civil liberties litigator and writer.

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