Bribing for Testimony

Growing reliance on the snitch
opinion by John Gorrell, Free Press contributor

The most important handicap to the perfect crime in America is our compulsion to blab. We cannot keep our mouths shut. The loose tongue, the braggadocio and the snitch are priceless tools of law enforcement. It's the use of the informer, the fink, the stool-pigeon, squealer and snitch that requires scrutiny in a society whose civil rights are under pressure as never before.

Snitching is endemic to the American way of law enforcement and Congress has established a broad statutory scheme to encourage the practice. Federal law includes the immunity statutes, Witness Relocation and Protection Act and the Sentencing Reform Act of 1984, along with a host of statutes giving cash rewards to "whistle-blowers," customs violators, awards from forfeitures, awards for turning in tax cheats and attorney-general rewards for giving "significant" aid to the government. In other words, it is public policy to encourage citizens to inform on one another. The problem is the reliability of their testimony. Informers either have "axes to grind," their butts are in the winger with the criminal laws, or they lust after the largesse that comes with snitching.

Every federal case with more than one defendant will likely have a snitch who receives benefits from the government for testifying against his partner-in-crime. The federal government has nurtured the reward-for-testimony to the point that prosecutors increasingly rely upon it over more reliable evidence. While the use of informers spans the course of human history, and we will always be saddled with it, we should not have to hold our nose every time a snitch takes the stand to swear the truth.

On the practical side of informer testimony, few inroads into the containment of organized crime and modern terrorism would be possible without the little guy ratting on the big guys. These criminal elements, in many ways, are more powerful than the government and very adroit at dodging the law. Informers are absolutely necessary to level the playing field. There is, however, no distinction in the law between deploying an informer against a powerful crime organization and giving some low-life criminal the choice of 15, 20, or 30 years in prison if he doesn't deliver the goods against a cellmate or alleged co-conspirator. Mandatory minimum sentences and draconian federal sentencing guidelines leave the poor devil little choice but to tell the prosecutors what they want to hear. It's bribery, and the safeguards against its inherent unreliability are inadequate.

The language and plain meaning of the federal bribery statute, 18 U.S.C. § 201(c)(2), is universally ignored by the courts when it comes to a prosecutor's bought testimony, or threats to a cornered snitch-to-be. The statute reads: "Whoever, directly or indirectly gives, offers or promises anything of value to any person for testimony before any court shall be fined or imprisoned for not more than two years, or both." The present strict constructionist U.S. Supreme Court has repeated time and again the mantra "we are bound to take Congress at its word," and yet the "whoever" in the statute does not apply to a prosecutor. So much for getting government off our backs. Rehnquist, Scalia, Thomas, and the rest of the "strict constructionists" are hellbent on disassembling a host of long fought-for personal rights. So, bought testimony that is intertwined with plausible half-truths and the extreme incentive to curry favor with the prosecution does not tear at the bloodless hearts of this court.

The oldest human rights principle in Anglo-American legal heritage is that the king is subject to the law. At a time when our Supreme Court paid a little more attention to human rights than it does today, Justice Brandeis, in a dissenting opinion in 1928, expressed the principle best, "Decency, security and liberty alike demand that government officials shall be subject to the same rules of conduct that are commands to the citizen.... To declare that in the administration of the criminal law the end justifies the means--to declare that the Government may commit crimes in order to secure the conviction of a private criminal... is a pernicious doctrine...."