We criminal defense lawyers like to say that it's our job to keep the system honest. We like to quote Cynthia Roseberry.
We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.Of course, the public mostly doesn't believe that. The common view (right up to the moment when someone needs a criminal defense lawyer) is that we are the lowest of the low, that we lie and cheat and pretend otherwise in order to ensure that machete wielding terrorists can roam the streets to rape and pillage at will. Or something.
As James Carville said in an altogether different context, "We're right, they're wrong." And sometimes, just sometimes, they get caught.
The feds brought a drug conspiracy case. As they do, they convinced one defendant (one who matters here, anyway) to testify against the others in exchange for a sweetheart deal. Those cooperating witness deals always take the same form: "You'll testify truthfully or the deal is off and we'll slam you hard with the original charges plus perjury."
Nobody says it, but the test of truthfulness in these deals is clear: "Truth is what we want you to say. If your story on the witness stand isn't the one we want to hear, you will be lying." Truth is measured not against reality but against what the government wants the evidence to be.
The deal, then, really, is this.
We'll do something wonderful for you. In exchange, you'll tell the jury that the defendants in this case did whatever we want you to say they did.That's what happens. The witness gets on the stand, tells the jury that she got this deal from the government but that she absolutely has to tell the truth or the heavens will quake, and that she wants to tell the truth now, anyway, because the truth shall set her free. Or something. On cross-examination the witness says the same thing, maybe adds that she's told different stories before but that this one is real by golly because I'll get in trouble if I lie, and anyway I'm telling the truth because it's the truth. Honest.
Of course, sometimes, maybe most of the time, what the so-called "cooperating witness" says is objectively true. It is what happened. Sometimes.
And sometimes they get caught. (Have I mentioned that?)
The witness was Senecca Williams. He testified at length about how he and the four defendants, on various particular occasions, would meet at a particular apartment and through activities and conversations demonstrate that they were, in fact, all part of a drug conspiracy. Small problem. Williams was in prison at the time. And the apartment wasn't occupied by any of these guys before Williams went to prison, and they had moved the operation elsewhere before Williams got out.
Short version: He lied. Under oath. As required to by his obligation to tell the truth.
On cross-examination he was asked if he wasn't in prison at the time. He dissembled, couldn't remember. The Assistant U.S. Attorney prosecuting the case was faster. "Objection. That’s not true.” Later, Rachel Cannon, an Assistant U.S. Attorney (apparently not the one who objected) said that the conversations and all at the apartment occurred earlier - you know, back before the defendants were there. The judge told Cannon,
[Y]ou know, you as the representative of the United States have an obligation to make sure that the evidence you’re presenting is, as far as you know, truthful and accurate . . . ,Cannon's answer:
And we stand by everything that’s been presented, your Honor.And so she did. Here's part of her closing argument:
[MS. CANNON:] Now, you saw the gotcha game that was played with them. What happened when the insider witnesses got dates wrong? And let’s talk about that. First of all, who could talk about a 10-year period of time and have exact precise dates for when things occurred? That’s just not human and that is just not natural.The law has long been clear. The government may not knowingly rely on false testimony and must correct any as soon as it occurs. Williams lied. Cannon knew it. She relied on the lies. She declared them at most mistakes, but said the jury could rely on them, anyhow. And she denied doing any of that to the judge.
MR. GOODMAN: Objection, Your Honor. I think this is misleading with respect to a
witness. There’s not mistaken of dates. They’re putting people in places that they
physically could never have been.
MS. CANNON: Your Honor, this is argument.
THE COURT: Be—well, be accurate then.
MS. CANNON: Yes.
THE COURT: Go ahead.
MS. CANNON: Ladies and gentlemen, they talked about events that happened on certain dates as best they could remember them. Now, who could go back in time for 10 years and remember exactly what dates things happened? Think about it. There’s lots of ways to think about this. If someone asked a teacher who were your students over the past 10 years, they could probably tell you who many of their students were. They could tell you many general dates that they had them. But if a student said—if a teacher said I had Suzy Smith in 2002 and it was really 2001, does that mean the teacher’s lying? No.
If you ask a business person who have been your clients over the past 10 years and they told you who their clients were and they told you the general cases that they worked with them on, but if they put them in 2004 when it really should have been 2005, does that mean they’re lying? No. That’s what’s going on here. And, ladies and gentlemen, isn’t that exactly how you know that these witnesses aren’t coached by us, that they’re not our puppets? Isn’t that exactly how you know that they are testifying to the best of their memory as best they can recall it the incidents as they happened.
So Senneca Williams said things happened with Brian Wilbourn around 2002 and
2003, and it was really 2001—
MR. GOODMAN: Objection, Your Honor. He puts him at a penthouse apartment that
Brian Wilbourn has never been to.
THE COURT: Correct.
MS. CANNON: Your Honor, this is argument.
MR. GOODMAN: This is misleading.
THE COURT: I think that is inaccurate.
MS. CANNON: Ladies and gentlemen, it’s for you to decide whether these witnesses were testifying to facts as they remember them or whether they were actually lying. And we would submit to you that they did the best they could with the dates, but they knew where they were and what happened.
In Berger v. United States, Justice Sutherland wrote
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.In an opinion issued Wednesday, Judge Joan H. Lefkow, who heard this case, quoted that passage from Berger. She continued:
In this case, the government fell short of those obligations. Despite ample notice from defense counsel and repeated warnings from the court not to improperly rely on Williams’s false testimony, Cannon chose instead to expressly credit it. And by doing so in the government’s rebuttal, she assured that defendants would have no opportunity to respond.Conspiracy convictions reversed.
The real problem, of course, is that they too often don't get caught. And too often we don't have a Judge Lefkow who's willing to right the wrong. Instead, we rely on those agreements. You know, the ones where the cooperating witness agrees to testify to whatever the government would like to have be the truth.
But sometimes, sometimes, they get caught.
The Opinion is available on PACER. It's USA v. Freeman, et al., No. 07CR843, Northern District of Illinois (Aug. 26, 2009). Article in the Chicago Tribune here. Thanks to Attorney Len Goodman for bringing it to my attention.
Thanks to Doug Berman for pointing out that the WSJ Law Blog has made the Judge Lefkow's opinion available here.