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Out of control (cont.) Discovery violations Discovery is a cornerstone of American justice. It requires that federal prosecutors turn over to criminal defendants any evidence that might help prove the defendants’ innocence or that might show the biases or lack of credibility of witnesses against them. The reason is simple, the Supreme Court has ruled: Withholding this information could result in an unjust verdict. Yet in its investigation, the Post-Gazette found hundreds of cases where prosecutors intentionally withheld discovery information. In May 1998, James R. Sterba went on trial in Tampa, Fla., on charges of soliciting a minor over the Internet for an unlawful sexual encounter, a charge he vehemently denied. The key witness against him was a government informant. Federal agents paid her $2,000 to visit Internet chat rooms to lure men to a hotel with the promise a girl would be waiting. When Sterba’s attorneys asked prosecutors for information that might reflect on the credibility of this witness, they were assured there was none. The trial was almost over when Sterba’s lawyers learned:
Prosecutors were duty-bound to turn over this information but did not. On Aug. 13, the judge dismissed the indictment against Sterba, who had been imprisoned for nine months awaiting trial. He finally went free. This particular type of discovery violation is common. Frequently, defendants aren’t told that witnesses against them have committed crimes, including murder; or that they have lied in previous trials; or that they have received money or reduced prison sentences in exchange for their testimony. But a discovery violation doesn’t guarantee a new trial. The Supreme Court has ruled that a verdict stands unless defense attorneys can show the information not made available at trial would have changed the outcome. In Pogue’s first appeal, judges peppered attorneys with questions about the irregularities in the government’s conduct, but they let the verdict stand, without even issuing an opinion as to why. The net result is that the system encourages prosecutors to calculate just how much evidence they can withhold without risking a reversal. They substitute their judgment in determining what evidence is important rather than allowing a judge and jury to decide. It has not always been that way. Gary Richardson, whom Reagan appointed U.S. Attorney for the Eastern District of Oklahoma, had an "open file" discovery policy in his office during his tenure, which ended in 1984. Defense lawyers were permitted to come in and look at anything prosecutors had collected on a particular case. Now, Richardson is a defense attorney and says that "open file" discovery simply doesn’t happen any more, and he wonders why. "My attitude was that if you can’t take the truth and win, then you weren’t supposed to win," he said. Telling lies in court Federal prosecutors often face a quandary when they investigate criminals or put them on trial. Fellow criminals usually don’t want to snitch on their colleagues or testify against them, and they surely don’t want to spend a lifetime in prison. So deals are made. Sometimes, witnesses with information about criminal activity get paid as informants. Sometimes, they get reduced prison time. In return, they must promise to tell truthfully everything they know. This sounds good in theory, but Don Carlson knows better. In 1992, federal agents stormed his San Diego area home in search of thousands of pounds of cocaine. They didn’t identify themselves. Carlson figured it was thieves trying to knock down his front door. He fired two shots into the door then was shot in the thigh as he dropped his gun and scrambled to a bedroom. There, as he lay defenseless on the floor, an officer shot him twice in the back. There were no drugs. An informant whom the government was paying $2,000 a month had made up a story about the drugs because he thought Carlson’s home was vacant and he needed to feed stories to agents to keep the money coming. The informant’s tendency to lie was well known. Federal agents in South Florida dumped him as an informant because of his repeated lies. But the lure of a major drug bust won out over common sense. Agents used his story to get a search warrant for Carlson’s home. In this case, their misconduct cost the government. Carlson received a multi-million dollar payout after agents almost shot him dead, but he got no apology. "All they said was that they were a victim of circumstances," said Carlson. Maybe so, but perjury is among the most pervasive problems in the federal justice system — affecting investigations, grand jury testimony and trials. The courts have hinted at some changes. In a startling decision in July, the 10th U.S. Circuit Court of Appeals ruled, 3-0, that promising leniency to witnesses in exchange for testimony amounted to buying that testimony, which violates federal law. Federal appeals courts in South Florida, Louisiana and Tennessee have issued similar, preliminary rulings in the past few months. The Colorado court recently pulled back the decision so that all 12 of the court’s judges may rehear arguments. If the ruling isn’t changed, it will certainly be appealed to the U.S. Supreme Court. Further appeals might become moot. U.S. Senator Patrick Leahy, D-Vermont, has introduced an amendment in the Senate that would exempt federal prosecutors from the statutes cited in the ruling. ‘Jumping on the bus’ "Jumping on the bus" has taken perjury in the federal justice system to new heights. Inmates deal for confidential information from other inmates, government informants and snitches within the federal bureaucracy; they then memorize it and recruit others to do the same. Then, to win sentence reductions, they testify to facts only a real insider could know. The detailed information that inmates deal might sell for $200,000 or more, but it can be traded for a sentence reduction of 10 or more years. It’s not a bad trade for inmates whose misadventures with the law might have left them with substantial assets but a future that included decades behind bars. Federal authorities haven’t responded to inquiries about the "jumping on the bus" phenomenon, but witnesses have told of being questioned in federal investigations of the problem. Richard Diaz, a former Miami police officer and now a prominent Miami defense attorney, says that since the early 1990s, the practice that earned drug smuggler Goy-riena promises of cuts in his prison sentence has touched hundreds of cases in South Florida and other jurisdictions. In Atlanta, a former prison inmate opened an office where federal prisoners could buy information they might use to testify against suspects they didn’t know. Diaz believes the phenomenon can be traced to mandatory sentencing guide- lines that Congress enacted in 1987, imposing stiff prison terms for most federal crimes and sharp reductions in the amount of time off for good behavior that inmates may earn. "Jumping on the bus" is one of the few ways left for federal prisoners to cut their prison time.
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The witness was using a
false name that hid her long criminal record.
