-------------------------------------------------------------------
Supreme Court on Ballot Initiative Regulations (A list subscriber
forwards the syllabus of today's decision and a URL for the full text,
noting the decision affects the signature collection process in every state
that has the ballot initiative.)
Date: Tue, 12 Jan 1999 21:59:19 -0500
To: "DRCTalk Reformers' Forum" (drctalk@drcnet.org)
From: JonGettman (Gettman_J@mediasoft.net)
Subject: Supreme Court on Ballot Initiative Regulations
Sender: owner-drctalk@drcnet.org
This decision affects state regulation of the signature collection process
for ballot initiatives. While the case concerns Colorado law, the decision
will affect every state. The syllabus of the decision is below, the link
provides access to the full decision.
Jon Gettman
http://supct.law.cornell.edu/supct/html/97-930.ZS.html
BUCKLEY, SECRETARY OF STATE OF COLORADO v. AMERICAN CONSTITUTIONAL LAW
FOUNDATION, INC., et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 97-930. Argued October 14, 1998-Decided January 12, 1999
Colorado allows its citizens to make laws directly through initiatives
placed on election ballots. The complaint in this federal action challenged
six of the State's many controls on the initiative-petition process.
Plaintiffs-respondents, the American Constitutional Law Foundation, Inc.,
and several individuals (collectively, ACLF), charged that the following
prescriptions of Colorado's law governing initiative petitions violate the
First Amendment's freedom of speech guarantee: (1) the requirement that
petition circulators be at least 18 years old, Colo. Rev. Stat.
§1-40-112(1); (2) the further requirement that they be registered voters,
ibid.; (3) the limitation of the petition circulation period to six months,
§1-40-108; (4) the requirement that petition circulators wear
identification badges stating their names, their status as "VOLUNTEER" or
"PAID," and if the latter, the name and telephone number of their employer,
§1-40-112(2); (5) the requirement that circulators attach to each petition
section an affidavit containing, inter alia, the circulator's name and
address, §1-40-111(2); and (6) the requirements that initiative proponents
disclose (a) at the time they file their petition, the name, address, and
county of voter registration of all paid circulators, the amount of money
proponents paid per petition signature, and the total amount paid to each
circulator, and (b) on a monthly basis, the names of the proponents, the
name and address of each paid circulator, the name of the proposed ballot
measure, and the amount of money paid and owed to each circulator during
the month, §1-40-121. The District Court struck down the badge requirement
and portions of the disclosure requirements, but upheld the age, affidavit,
and registration requirements, and the six-month limit on petition
circulation. The Tenth Circuit affirmed in part and reversed in part. That
court properly sought guidance from this Court's recent decisions on ballot
access, see, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351, and
on hand-bill distribution, see, e.g., McIntyre v. Ohio Elections Comm'n,
514 U.S. 334. The Tenth Circuit upheld, as reasonable regulations of the
ballot-initiative process, the age restriction, the six-month limit on
petition circulation, and the affidavit requirement. The court struck down
the requirement that petition circulators be registered voters, and also
held portions of the badge and disclosure requirements invalid as trenching
unnecessarily and improperly on political expression. This Court agreed to
review the Court of Appeals dispositions concerning the registration,
badge, and disclosure requirements. See 522 U.S. ___.
Precedent guides this review. In Meyer v. Grant, 486 U.S. 414, this Court
struck down Colorado's prohibition of payment for the circulation of
ballot-initiative petitions, concluding that petition circulation is "core
political speech" for which First Amendment protection is "at its zenith."
Id., at 422, 425. This Court has also recognized, however, that "there must
be a substantial regulation of elections if they are to be fair and honest
and if some sort of order ... is to accompany the democratic processes."
Storer v. Brown, 415 U.S. 724, 730; see Timmons, 520 U.S., at 358; Anderson
v. Celebrezze, 460 U.S. 780, 788.
Held: The Tenth Circuit correctly separated necessary or proper ballot
access controls from restrictions that unjustifiably inhibit the
circulation of ballot-initiative petitions. Pp. 7-22.
(a) States have considerable leeway to protect the integrity and
reliability of the ballot-initiative process, as they have with respect to
election processes generally. "[N]o litmus-paper test" will separate valid
ballot-access provisions from invalid interactive speech restrictions, and
this Court has come upon "no substitute for the hard judgments that must be
made." Storer, 415 U.S., at 730. But the First Amendment requires vigilance
in making those judgments, to guard against undue hindrances to political
conversations and the exchange of ideas. See Meyer, 486 U.S., at 421. The
Court is satisfied that, as in Meyer, the restrictions in question
significantly inhibit communication with voters about proposed political
change, and are not warranted by the state interests (administrative
efficiency, fraud detection, informing voters) alleged to justify those
restrictions. This judgment is informed by other means Colorado employs to
accomplish its regulatory purposes. Pp. 7-8.
(b) Beyond question, Colorado's registration requirement drastically
reduces the number of persons, both volunteer and paid, available to
circulate petitions. That requirement produces a speech diminution of the
very kind produced by the ban on paid circulators at issue in Meyer. Both
provisions "limi[t] the number of voices who will convey [the initiative
proponents'] message" and, consequently, cut down "the size of the audience
[proponents] can reach." Meyer, 486 U.S., at 422, 423.
The ease with which qualified voters may register to vote does not lift the
burden on speech at petition circulation time. There are individuals for
whom, as the trial record shows, the choice not to register implicates
political thought and expression. The State's strong interest in policing
lawbreakers among petition circulators by ensuring that circulators will be
amenable to the Secretary of State's subpoena power is served by the
requirement, upheld below, that each circulator submit an affidavit setting
out, among several particulars, his or her address. ACLF did not challenge
Colorado's right to require that all circulators be residents, a
requirement that more precisely achieves the State's subpoena service
objective. Assuming that a residence requirement would be upheld as a
needful integrity-policing measure-a question that this Court, like the
Tenth Circuit, has no occasion to decide because the parties have not
placed the matter of residence at issue-the added registration requirement
is not warranted. Pp. 8-13.
(c) The Tenth Circuit held the badge requirement invalid insofar as it
requires circulators to display their names. The District Court found from
evidence ACLF presented that compelling circulators to wear identification
badges inhibits participation in the petitioning process. Colorado's
interest in enabling the public to identify, and the State to apprehend,
petition circulators who engage in misconduct is addressed by the
requirement that circulators disclose their names and addresses on
affidavits submitted with each petition section. Unlike a name badge worn
at the time a circulator is soliciting signatures, the affidavit is
separated from the moment the circulator speaks, when reaction to the
message is immediate and may be the most intense, emotional, and
unreasoned. Because the badge requirement compels personal name
identification at the precise moment when the circulator's interest in
anonymity is greatest, it does not qualify for inclusion among "the more
limited [election process] identification requirement[s]" to which this
Court alluded in McIntyre, 514 U.S., at 353. Like the Tenth Circuit, this
Court expresses no opinion on the constitutionality of the additional
requirements that the badge disclose whether the circulator is paid or
volunteer, and if paid, by whom. Pp. 13-16.
(d) The Tenth Circuit invalidated the requirement that ballot-initiative
proponents file a final report when the initiative petition is submitted
insofar as that requirement compels disclosure of each paid circulator by
name and address, and the total amount paid to each circulator. That court
also rejected compelled disclosure in monthly reports of the name and
address of each paid circulator, and the amount of money paid and owed to
each circulator during the month in question. In ruling on these disclosure
requirements, the Court of Appeals looked primarily to this Court's
decision in Buckley v. Valeo, 424 U.S. 1. In Buckley, the Court stated that
"exacting scrutiny" is necessary when compelled disclosure of
campaign-related payments is at issue, but nevertheless upheld, as
substantially related to important governmental interests, the reporting
and disclosure provisions of the Federal Election Campaign Act of 1971.
Mindful of Buckley, the Tenth Circuit did not upset Colorado's disclosure
requirements as a whole. Notably, the Court of Appeals upheld the State's
requirements for disclosure of payors, in particular, proponents' names and
the total amount they have spent to collect signatures for their petitions.
Disclosure of the names of initiative sponsors, and the amounts they have
spent to gather support for their initiatives, responds to Colorado's
substantial interest in controlling domination of the initiative process by
affluent special interest groups. The added benefit of revealing the names
of paid circulators and amounts paid to each circulator, the lower courts
fairly determined from the record as a whole, has not been demonstrated.
This Court expresses no opinion whether other monthly report prescriptions
regarding which the Tenth Circuit identified no infirmity would, standing
alone, survive review. Pp. 16-20.
(e) Through less problematic measures, Colorado can and does meet the
State's substantial interest in regulating the ballot-initiative process.
To deter fraud and diminish corruption, Colorado retains an arsenal of
safeguards. To inform the public about the source of funding for ballot
initiatives, the State legitimately requires sponsors of ballot initiatives
to disclose who pays petition circulators, and how much. To ensure grass
roots support, Colorado conditions placement of an initiative proposal on
the ballot on the proponent's submission of valid signatures representing
five percent of the total votes cast for all candidates for Secretary of
State at the previous general election. Furthermore, in aid of efficiency,
veracity, or clarity, Colorado has provided for an array of process
measures not contested here by ACLF. P. 21.
120 F.3d 1092, affirmed.
Ginsburg, J., delivered the opinion of the Court, in which Stevens, Scalia,
Kennedy, and Souter, JJ., joined. Thomas, J., filed an opinion concurring
in the judgment. O'Connor, J., filed an opinion concurring in the judgment
in part and dissenting in part, in which Breyer, J., joined. Rehnquist, C.
J., filed a dissenting opinion.
-------------------------------------------------------------------
Interview With Eric Sterling For 'Snitch' (The Public Broadcasting Service's
"Frontline" interviews the man who served as a congressional legal adviser
from 1979 to 1989 and who helped write the current mandatory minimum federal
sentencing laws for drug offenders. He later disavowed the legislation
and become a reform activist and founder of the Criminal Justice Policy
Foundation.)
Date: Wed, 13 Jan 1999 06:28:38 -0800
From: owner-mapnews@mapinc.org (MAPNews)
To: mapnews@mapinc.org
Subject: MN: US: Interview With Eric Sterling For 'Snitch'
Sender: owner-mapnews@mapinc.org
Reply-To: owner-mapnews@mapinc.org
Organization: Media Awareness Project http://www.mapinc.org/lists/
Newshawk: The Media Awareness Project of DrugSense
Source: PBS Frontline
Pubdate: Tue, 12 Jan 1999
Copyright: 1999 WGBH/FRONTLINE
Contact: frontline@wgbh.org
Mail: Frontline Producer: WGBH 125 Western Avenue Boston, MA 02134
Website: http://www.pbs.org/wgbh/pages/frontline/shows/snitch/
Forum: http://www.pbs.org/wgbh/pages/frontline/shows/snitch/talk/
Note: Below is one of the many features posted to the website above which
expand on the documentry 'SNITCH.' Headline by MAP. The Criminal Justice
Policy Foundation website is at: http://www.cjpf.org/
INTERVIEW WITH ERIC STERLING FOR 'SNITCH'
Eric E. Sterling was counsel to the U.S. House Committee on the Judiciary,
1979-1989 and participated in the passage of the mandatory minimum
sentencing laws. Currently, he is President of The Criminal Justice Policy
Foundation, Washington, DC and Co-Chair of the American Bar Association,
Committee on Criminal Justice, Section of Individual Rights and
Responsibilities.
FRONTLINE: Looking back now, how do you measure the success of your work
enacting mandatory minimum sentences for drug offenses?
Eric Sterling: The work that I was involved in in enacting these mandatory
sentences is probably the greatest tragedy of my professional life. And I
suspect that the chairman of the subcommittee feels that way too. There
[have] been ... literally thousands of instances of injustice where minor
co-conspirators in cases, the lowest level participants, have been given
the sentences that Congress intended for the highest kingpins. Families are
wrecked, children are orphaned, the taxpayers are paying a fortune for
excessive punishment. You know there's nothing conservative about punishing
people too much. That's an excess. And it's just a waste. It is such a
waste of human life. It's awful.
FRONTLINE: How did these laws come about?
Eric Sterling: These laws came about in an incredible conjunction between
politics and hysteria. It was 1986, Tip O'Neill comes back from the July
4th district recess and everybody's talking about the death of the Boston
Celtics pick, Len Bias. That's all his constituents are talking to him
about. And he has the insight, "Drugs, it's drugs. I can take this issue
into the election." He calls the Democratic leadership together in the
House of Representatives and says, "I want a drug bill, I want it in four
weeks." And it set off kind of a stampede. Everybody started trying to get
out front on the drug issue. ... I mean every committee ... not just the
Judiciary Committee--Foreign Affairs, Ways and Means, Agriculture, Armed
Services. Everybody's got a piece of this out there, fighting to get their
face on television, talking about the drug problem. And ... these
mandatories came in the last couple days before the Congressional recess,
before they were all going to race out of town and tell the voters about
what they're doing to fight the war on drugs. No hearings, no consideration
by the federal judges, no input from the Bureau of Prisons. Even the DEA
didn't testify. The whole thing is kind of cobbled together with chewing
gum and baling wire. Numbers are picked out of air. And we see what these
consequences are of that kind of legislating. ... Ten-year mandatory
minimum, routine sentences are 15, 20, 30 years, without parole. ... Then
you have conspiracy, and suddenly ... you have people facing 50 years,
people facing either life in virtual terms or as a real sentence. That's
what's happening. Fifteen thousand federal drug cases a year. Bulk of them
mandatory minimum cases. Most of them minor offenders. Only 10% of all the
federal drug cases are high level traffickers. You wonder, who's asleep at
the switch at the Justice Department? ... What you have is conviction on
the basis of testimony. You have drugless drug cases. You don't need
powder, all you need is the witness to say, "I saw a kilo,"...
FRONTLINE: With no drugs to be found?
Eric Sterling: There don't have to be drugs. People are amazed, "Well,
aren't there drugs?" There don't have to be drugs. All there have to be are
witnesses who say, "I saw the drugs," or, "He said there were drugs."
That's what you need.
FRONTLINE: Couldn't you guess this would happen?
Eric Sterling: I don't think any of us fully anticipated what these numbers
would generate. Remember, at the time that we were doing this, the federal
prison population was in the range of 30,000. It's over 100,000 today. None
of us envisioned that the Justice Department would so profoundly misuse
this statute. Congress said, "We're giving the Justice Department these
high-level sentences so that you will go after the highest level
traffickers." DEA agents and assistant U.S. attorneys are misusing this
statute, with the complicity of their managers in the Department of
Justice, to engage in what now has really become a pattern and practice of
racial discrimination in almost overwhelmingly prosecuting people of color
for tiny amounts of drugs and sending them away for kingpin sentences.
FRONTLINE: Why are they doing it?
Eric Sterling: They're doing it because it's easy. These cases are the
easiest cases to prosecute. They're cut and dried. The lawyers are public
defenders. There's not any kind of real defense. ... These are little
cases. However, it's good training for young ambitious attorneys who want
to acquire jury experience. And some day they may go after the kingpins,
but at this point they're able to learn their craft. For DEA agents, this
is safe. I mean when DEA agents go to Columbia or Mexico, their life is in
danger. Going after some poor schnook who's the corner crack dealer, that
doesn't threaten their lives. The statistics look good. ...
FRONTLINE: How did conspiracy law emerge?
Eric Sterling: If the mandatory minimums were a result of haste and excess
by Congress, conspiracy as applied to these mandatories was completely by
oversight and by accident. It was submitted as part of a simple technical
corrections amendment. No one even thought at all about what the
implications were of applying conspiracy. It was presented as though this
was simply a slight little loophole that had been inadvertently created and
just had to be rectified by inserting the words, "or conspiracy." No one
envisioned that by applying [the statute] to anyone in a conspiracy, no
matter how low they were in the conspiratorial chain, that they would get
the maximum that could be imposed for the kingpin. Nobody figured that out
as we were working on it in 1988. It was a total oversight. Now of course
you can't change [it], because that's soft on drugs.
FRONTLINE: Isn't this all a deadly mix?
Eric Sterling: The current sentencing situation is a sort of witch's brew
of three poisons put together making an abominable poison: mandatory
minimums designed for kingpins with very long sentences; conspiracy
bringing in the lowest level offenders who become eligible for those; [and
"substantial assistance" policies]. The only way they can avoid those
mandatories is to provide substantial assistance to a prosecutor and if it
means telling a wild story to avoid spending almost life in prison without
parole, there are many people who will do that.
... It's the prosecutor who decides whether or not your substantial
assistance, your testimony, is good enough to get the prosecutor's motion
to reduce your sentence ... . So the incentive is, "I'll tell any story I
can." I mean these aren't exactly saints that we're dealing with here, dope
dealers. [They are] people who are often very desperate. They realize, "If
I can get five years instead of 30 years, if I tell a story against that
other guy, tell me what I have to say, I'll say it."
FRONTLINE: Doesn't the prosecution know that people are lying?
Eric Sterling: The entire criminal justice system knows that perjury is the
coin of the realm. In New York City police officers call it "testalying."
In Los Angeles they call it "the liar's club." Everybody knows that lying
takes place. The prosecutors don't feel bad about it, this is simply part
of the system. They just justify it by saying, "We have to get the bad
guy." ... Police officers conform their testimony to what they know the
courts expect to hear in order to get the results that they want, not on
the basis of what the facts are.
FRONTLINE: Prosecutors say that judges tell witnesses not to lie, under
penalty of perjury.
Eric Sterling: When a judge tells a witness, "Let me remind you, you're
under oath and if you lie under oath, you'll be prosecuted for perjury,"
this is a disclaimer. The judge in effect is washing his hands or her hands
of any responsibility for the lie which is forthcoming. This is part of the
ritual; it's a ritual statement, it's not a real statement. It's like when
you ask a defendant who's pleading guilty if they understand what they're
doing. They always say, yes. They're supposed to. They often don't have a
clue what they're doing. ...
Informing has been one of the great problems of the criminal justice
system. When a codefendant testifies, almost always the defense can ask for
an instruction to the jury that the testimony of a codefendant is suspect.
The courts have recognized that. But this testimony becomes the cornerstone
of the prosecution. And the jury understands, "Well, this is one dope
dealer against another dope dealer and if the government is trying to
convict this dope dealer, well probably this person is guilty, or else why
else would we be here?" We believe in the presumption of innocence as a
society. Once you get in the courtroom, that presumption is very, very
thin. It's not a whole lot of protection. And when you have a witness who
says, "Yes, I am getting a deal, but I was there and this is what the
defendant did," jurors will say, "Even if I don't believe all that he's
saying, I believe enough of it and that enough is proof beyond a reasonable
doubt for me." ...
FRONTLINE: Do you feel guilty about your involvement in the development of
these laws?
Eric Sterling: The war on drugs is one of the great evils of our times.
Drugs are a serious problem, but it's very hard to tease out where the
problems of drugs and the problems of the war on drugs are not overlapping.
Some day there probably will be war crimes trials in which those
responsible for these crimes against the American people, and other
peoples, may be brought to justice. ... We have federal judges who have
resigned, federal judges who have wept on the bench. Senior federal judges
who say, "We refuse as a matter of conscience any longer to take these
kinds of cases." Those are people at least who have the opportunity to step
out. I had the opportunity to step out by leaving my job in the government
and [am] now working to help expose what I think are these problems. When I
meet with the family members of people serving these sentences, it is very
hard. At times I am moved to tears when I sit across from someone whose
loved one is serving a 30-year sentence for something that I played a role
in getting enacted. It's an awful feeling.
FRONTLINE: Is conspiracy law the worst element in creating these unjust
situations?
Eric Sterling: Many nations do not have conspiracy laws because they see
how they can be so badly abused. Our conspiracy law is such that long after
you've dropped out of the conspiracy, you're still responsible for things
that you may have done way in the past. The criminal organization marches
forward. You've gone straight. But when the chain gets connected all the
way to the back, you can still be held liable and you can be held liable
often for things that you had no responsibility for and you could not
foresee. It's a terrible problem, the way in which conspiracy is being used
in these cases. ...
I had a conversation with a federal judge about the implications of the war
on drugs. And the sense of how alien it is to American values, the use of
informants, paying informants. ... We have hundreds of thousands of
informants. Informants can make a living professionally in their role as
informants. This is simply an anathema to the way in which we think a free
society ought to operate. The role of wiretapping, of monitoring telephone
conversations, of taping conversations. Defense lawyers now are afraid that
their clients may be trying to entrap them. The government has said, "We
believe we have the power to go to a man represented by an attorney and
unbeknownst to that attorney, try to get that man to incriminate the
attorney." To think that we would undermine our legal system in this way is
reminiscent of the Soviet Union. ...
FRONTLINE: Are we becoming what we hated?
Eric Sterling: If we look at the way in which so much of our society
functions today, it looks like the kind of highly regimented Soviet system
that we were repulsed by in the early 1950s. Informants in the work place.
Fear of having conversations with people. Fear of our children informing
against us. Not knowing what the charges might be. Offenses for which bail
is no longer available. ...
FRONTLINE: Does the public understand what's going on?
Eric Sterling: The ignorance about what's going on exists on a bunch of
different levels. Number one, the offenders themselves are ignorant of what
the penalties are that they could incur. Congress says, "We're going to
pass these tough laws to send a message to the criminals to stop." But
there's a complete disconnection between what Congress hopes and what
criminals actually understand. They don't watch C-SPAN, they don't read
"Congressional Record." They simply don't know. They're astonished when
they get punished. Congressmen also don't know what the laws are. Many of
them don't even know that parole was abolished. The public doesn't know
what the laws are. The public still believes that people are getting
slapped on the wrist. These are examples which then allow a member of
Congress to say with a straight face, "We need to get tougher."...
FRONTLINE: What is the substantial assistance clause?
Eric Sterling: One of the oldest prosecutorial techniques is working up the
ladder. Finding someone who's not centrally involved, but who has evidence
and who you in effect squeeze and say, "Testify up." This was a very common
way in which an organized crime investigation would work. It's a very old
theory in the law and they believed that that would [work] here. The
difference in part is between being sort of a soldier in a traditional La
Cosa Nostra family was you actually knew who your supervisors were. You
knew what they did. They spoke to you. Drug organizations now are so large
and so diverse that someone can be involved as an unloader, as a seller, as
a mule, as a courier. They're insulated, they don't know who the principals
are. ... So very often low level people have nothing that they can really
offer. However, the higher ups are in a position, very often, to testify
down. They say, "I'll testify against six people." The prosecution of
General Manuel Noriega is a prime example where a whole bunch of high level
dope dealers got great sentence bargains for going after General Noriega.
FRONTLINE: Snitching up?
Eric Sterling: That was snitching up, but these were already people who
were high level people. Manny Noriega was not dealing with the guy who was
unloading the boats.
FRONTLINE: Does the system encourage those on the lower levels of a drug
organization, who don't have useful information to pass on to prosecutors,
to set up others who may be innocent?
Eric Sterling: This was one of the things that really did mystify me when
our subcommittee did investigations of the way in which informants were
used and misused back in the 1980s. If you are a professional informant,
it's a whole lot safer to set up someone than to actually inform against
somebody in the business, because that person may have you killed. And so
we came across cases in which an informant would pretend to be a government
agent, and enlist somebody to [whom] they say, "We want you to help catch a
dope dealer. Now, in order to do that, you have to tell the dope dealers
this story about all the stuff you've done." Now what happens then is
actually the patsy thinks that these people he's talking to are dope
dealers, [but they] are actually the DEA agents. And so the patsy is
telling the DEA agents what he's been told by the informant to say, all
about all this stuff that he did. So the patsy then gets prosecuted as a
dope smuggling pilot, the informant gets his reward, DEA gets the case, who
cares about the patsy? He's now a convicted dope dealer. ...
FRONTLINE: These witnesses are facing time?
Eric Sterling: ... It's [often] somebody who's saying "Geez, I'm facing 30
years or 50 years in prison, I can get out? What do I have to do? What do I
have to testify? Who do I have to testify against? I have to say he was a
dope dealer, sure. How much do you need to say you saw? How bad do you
think this guy is? He's real bad? Oh, he said he sold fifty kilos, he was
the biggest dealer in town. Is it true? I swear it's true, honest." Who's
going to dispute it? So you've got this guy sitting with the majesty of the
federal court, presented by the United States. "Your Honor, this is the
witness on behalf of the United States. You don't believe him? You don't
believe the United States, your own government? Who can you trust if you
can't trust us, if you can't trust our witnesses?" I don't know how judges
can sleep at night, sending people to prison on what they know is perjured
testimony. Well, how do they do it? "Wasn't my decision, was the jury. ...
If the jury believed him, who am I to say that he wasn't telling the truth?"
FRONTLINE: But the jurors often don't know what the penalty for a guilty
verdict will be.
Eric Sterling: The jurors don't know the penalty. We don't let the jurors
know the penalty. ... If everybody thinks that dope dealers are getting off
with a slap on the wrist, jurors are in the same box. After all, we know
that prosecutors try to keep informed people off the jury. We don't want
informed people on the jury. They're not so easily manipulated.
-------------------------------------------------------------------
Snitch (A transcript of the "Frontline" documentary on the role of federal
informants and mandatory minimums in the war on some drug users,
produced by the Public Broadcasting Service)
Date: Thu, 21 Jan 1999 19:41:49 -0800
From: owner-mapnews@mapinc.org (MAPNews)
To: mapnews@mapinc.org
Subject: MN: US: Frontline SNITCH Transcript
Sender: owner-mapnews@mapinc.org
Reply-To: owner-mapnews@mapinc.org
Organization: Media Awareness Project http://www.mapinc.org/lists/
Newshawk: The Media Awareness Project of DrugSense
Source: PBS Frontline
Pubdate: Tue, 12 Jan 1999
Copyright: 1999 WGBH/FRONTLINE
Contact: frontline@wgbh.org
Website: http://www.pbs.org/wgbh/pages/frontline/shows/snitch/
Mail: Frontline Producer WGBH 125 Western Avenue Boston, MA 02134
Note: Written, Produced and Directed by Ofra Bikel
Related: http://www.mapinc.org/drugnews/v99.n047.a01.html
[Interview With Eric Sterling For 'Snitch']
http://www.mapinc.org/drugnews/v99.n047.a05.html
[PBS Frontline's SNITCH on-line]
FRONTLINE
SNITCH
DEA AGENT: Please open the door!
ANNOUNCER: In the war on drugs, one of the more important weapons the
government uses is the informant.
"TONY": What would you do if the government came knocking on your door
telling you that you will get 30 years in prison unless you inform on
somebody? Or that your child will get 20 years unless he informs? Think
about it.
JAMES SETTEMBRINO: The attorney told me, he says, "Jim, he could go to jail
for 30 years." I says, "Thirty years? Are you crazy?" And he said, "Yeah,
30 years." I says, "He's 18 years old." You know, "How can someone go to
jail for 30 years for selling drugs?"
ANNOUNCER: With mandatory minimum penalties now for drug offenses, the
pressure is on to name names. But with so much at stake, can an informant
be trusted to be telling the truth?
ERIC STERLING: In New York City police officers call it "testalying." In
Los Angeles, they call it "the liars club." Everybody knows that lying
takes place. The prosecutors don't feel bad about it. This is simply part
of the system.
ANNOUNCER: Tonight on FRONTLINE, an inside look at the way the very nature
of justice has been altered by the "Snitch."
NARRATOR: "Tony" lives in a world of shadows. His name has been changed and
his identity hidden. Facing a life sentence, he made a deal with the
government and become an informant, a snitch.
"TONY": I was in drugs, the sale of drugs, for a total of about three
years. And I made enough money to open up a legitimate business, and I got
out of it. So basically, I was in and out very quickly.
INTERVIEWER: So how did they get you?
"TONY": Well, the people that I was associated with in the very beginning
of my drug-dealing days, they continued on. So eventually they got caught,
and they wanted to get their sentences reduced, so they started naming
names. And they used my name to try and get out of jail quicker.
NARRATOR: Nowhere in the criminal justice system are informants used more
than in the war on drugs. They are used by the FBI, DEA and Customs, among
other law enforcement agencies. Almost every bust, every seizure, every
arrest is the result of an informant's, or snitch's, work. Tony was
snitched on years after he stopped dealing drugs.
"TONY": I was never arrested with any drugs in my life. I was never even
arrested with a large amount of money. I was very far away from drugs when
they finally came and arrested me.
NARRATOR: But he knew that there were informants ready to testify against him.
"TONY": You have a prison population, guys that are doing life sentences
who will do anything to get out of prison. In my case, there were actually
people who were reading the newspaper. When the newspapers came out, there
were people who, I found out later, called the government, and they said
"Hey, I can testify against this person." So how do you- how do you fight
against something like that, when it's just somebody's word against yours?
NARRATOR: The government had him over a barrel because of the harsh
penalties it enacted in the late 1980s. If Tony had refused to cooperate
and testify against his old-time drug supplier, he could have received life
in prison. Still, he said, he held out.
"TONY": I decided not to cooperate. I had my mind made up to go to trial.
So what they did is, they indicted my mother and my brother.
INTERVIEWER: To pressure you?
"TONY": Yes.
INTERVIEWER: Were they involved at all in drugs?
"TONY": Absolutely- No. They were involved in nothing. Never did they even
know what I was doing. I had to make the toughest choice of my life. It was
either let my family possibly go to prison for something they had nothing
to do with, or cooperate with the government.
NARRATOR: He cooperated and served 10 years in prison in a unit reserved
for informants. Tony asked to be interviewed in silhouette. He was
concerned, he said, about the reaction of the government.
"TONY": They don't like any witnesses to come forward to talk to the media,
and witnesses who have done this in the past have been retaliated against.
I'm not getting paid for this interview. I'm talking to you because there's
a need for the public to know what's going on with this- with this
so-called "drug war."
J. DON FOSTER, U.S. Attorney: As far as snitches go, if they're helping to
solve this terrible drug problem we have in this country, then we will
continue to use them, as long as they're truthful. I have no problem using
snitches. You have to to prove the cases under our system of laws.
NARRATOR: By the early '90s, the government was paying informants or
snitches more than $100 million a year. They paid thousands of others by
reducing their sentences. Over the last five years, nearly a third of the
people sentenced in drug-trafficking cases in the federal system had their
sentences reduced because they informed on other people. Ronald Rankins is
one of the informants. He now wants the world to know why.
RONALD RANKINS: I wrote Janet Reno. I wrote President Clinton. I wrote
Oprah Winfrey. I wrote "60 Minutes." I wrote "Hard Copy." I wrote "New York
Times." I wrote "Mobile Press Register." And the list just goes on and on
and on.
NARRATOR: He wrote claiming that his testimony was coerced. He was arrested
in 1992 and was charged with conspiracy to distribute crack cocaine and
money laundering. He faced life in prison.
RONALD RANKINS: I was a drug user, you know? And I sold drugs more or less
to support my habit, you know? And I wasn't nothing near what they would
call a kingpin or what the judicial system would refer to as a kingpin.
NARRATOR: His co-defendant was his friend, Algernon Lundy, called "Lonnie."
RONALD RANKINS: The prosecutor, Donna Barrows, she said, "One of you is
going to receive a life sentence, Mr. Rankins." She said, "Now, it don't
matter to me which one of you receives a life sentence." She say, "I can
assure you the federal government have a 98.6 conviction rate, and if I
tell you you're going to receive a life sentence, you can call your family
and tell them to break your plate because you won't be coming home again."
Those was her words, verbatim.
NARRATOR: He finally took the stand and was the star witness against his
friend, Lonnie Lundy. In exchange, he received a reduced sentence of 15
years in federal prison. Now he regrets it.
RONALD RANKINS: And as God is my witness, it hurt me to my heart to take
the stand again, like, and sit there and tell all them lies.
INTERVIEWER: But you finally did.
RONALD RANKINS: Let me ask you a question, if I may. If you was faced with
a life sentence right now, and they tell you, "Well, Miss Ofra, if you
don't testify on this guy, your next-door neighbor, that you seen him
selling drugs, we're going to give you a life sentence, we're going to make
you part of this conspiracy and give you a life sentence," what're you
going to do? You going to take that life sentence?
INTERVIEWER: Probably not.
RONALD RANKINS: Okay. You human. Everybody's human. No matter what type of
tough exterior they try to represent, you know, people is human. They're
not robots. Regardless to how tough you try to be on the street and how
tough you try to be in prison, when it comes down to it, them letters,
L-I-F-E, it'll put a whole new perspective in the ball game. You ain't just
talking about "One of these days I'm going to be out of here." The only way
you're coming out of here is when you got a tag on your big toe and no
breath left in your body.
GORDON ARMSTRONG III, Defense Attorney: You see it frequently where people
come back years later and say, "Well, I lied then. I lied." And then the
judges and the lawyers who come back years later say, "Well, are you lying
now, or did you lie then? Are you lying now just to try to help somebody?
Are you trying to help somebody out of jail or help somebody with their
appeals?"
INTERVIEWER: How can you tell?
GORDON ARMSTRONG: You can't tell. That's the whole problem. You don't know
and that's - that's the danger of using them from the very beginning.
Rep. BILL McCOLLUM (R), Florida: I want to tell you I am much more
concerned about the loss of life to drugs and to the crime that's going on
out there, and the need to stop it and to protect our innocents and our
citizens, than I am about anybody's concern over informants. Good lord,
informants are a way of life in American justice, whether it's a drug issue
or not. How else are we going to find the bad guy?
NARRATOR: In the mid-1980s, the bad guys dominated the news with a new
scourge, crack cocaine.
REPORTER: The newest and one of the deadliest drugs sweeping the country
today is crack, a potent-
REPORTER: Crack is in 25 states coast-to-coast and in every major city.
REPORTER: In New York, crack-smoking is an epidemic.
REPORTER: Police say there may now be as many as 1,200-
REPORTER: -are singing in courts, and the refrain is crack.
NARRATOR: Congress responded immediately by passing new laws of mandatory
minimum sentences that would apply to drug traffickers. The proposed
sentences that became the law of the land were Draconian. They were clearly
directed at the major drug traffickers. People who had previously been
considered minor offenders could now draw 20 years to life in prison.
Parole had already been abolished.
Many judges were appalled, United States District Judge Robert Sweet among
them.
ROBERT W. SWEET, U.S. District Court Judge: There are a lot of people in
jail for a lot longer, and a lot of the low-level people are in jail, as a
consequence. And when you start figuring out the economics of this, it's
staggering - I mean, the $25,000 it costs to build the cell, the $30,000 it
costs every year that they're in. And the bottom line of all of it, if
you're talking about social policy, is no benefit. Who can point to the
benefit? Who can point to the value of these mandatory minimums?
Sen. ORRIN HATCH (R), Utah: Well, we found - the reason why we went to
mandatory minimums is because of these soft-on-crime judges that we have in
this society, judges who just will not get tough on crime, get tough
especially on pushers of drugs that are killing our youth. And so that's
why the mandatory minimums, so that we set some reasonable standards within
which judges have to rule, rather than allowing them to just put people out
on probation who otherwise are killing our kids.
NARRATOR: The mandatory minimum laws left only one way for defendants to
escape the full force of the sentence: to provide the government with what
the prosecution would deem substantial assistance. In other words, to
inform on someone else. It is an issue which is now hotly debated.
BOB CLARK, Defense Attorney: If I offered a witness a $100 bill to come
down and say it my way, I'd go to prison for that. But yet the government
can give them something far more precious than money, far more precious
than diamonds or gold or anything. They can give them freedom.
Sen. JEFF SESSIONS (R), Alabama, Former U.S. Attorney: There is no
incentive for a person to plead guilty and to confess if there isn't some
benefit from it because usually these co-conspirators are friends,
sometimes even relatives, so they don't want to testify against them. But
if you can say, "You're looking at 10 years, and we'll recommend 5 years.
And we want to give you - you've got to corroborate your testimony, but
you've got to" - you know, "We want you to tell what you know, where you've
been getting your drugs and who you've been selling your drugs to."
JONATHAN TURLEY, Law Professor, George Washington University: The
sentencing changes created an overwhelming pressure to cooperate, even to lie.
NARRATOR: Jonathan Turley is a constitutional law professor at George
Washington University. He has worked with Congress on criminal legislation
and has written extensively on sentencing issues.
JONATHAN TURLEY: A first-time drug offender will get a 10-year mandatory
minimum without chance of parole in the federal system. That's a long damn
time. And there's no out. You're looking at an office that has an over 90
percent conviction rate. And if you're convicted, you spend 10 years, and
there's no more parole in the federal system.
Now, you tell that to a young kid at 18, and it concentrates the mind. And
he asks his lawyer, "What can I do to get out of this?" and you say, "Well,
you have to turn someone in. You've got to cop a plea. You've got to give
them something they want." And they do. And if they don't know anything,
they make it up. And that's the way it works.
And it's not good. It's not good for any of us. But it's the way that the
system more and more seems to operate. We're beginning to become a society
of informants.
NARRATOR: It was with the help of informants that Lula May Smith of Mobile,
Alabama, was found guilty of conspiracy to distribute drugs. She was in her
late 50s when she was sentenced to seven years in prison, where she had two
strokes. She is now under supervised release until the year 2002.
LULA MAY SMITH: I went in in '89, I got out in January the 10th of '96.
There he go, right passing! There he go. There the snitch go. There he is.
NARRATOR: The man who she says informed on her is now free in her
neighborhood.
LULA MAY SMITH: Just about every day, if I come out here and sit down out,
and when it's cool on the outside, he walks daily up and down this street.
BOB CLARK: Lula May Smith was a maid at the Holiday Inn downtown, a
hard-working woman, had worked hard all her life.
NARRATOR: Her defense attorney was Bob Clark.
BOB CLARK: I met Lula because my office is next door to the Holiday Inn,
and she would sometimes - the heat in the kitchen over there would just get
overwhelming, and she'd go out the back door and stand out for a few
minutes to get some fresh air. And that's how I met Lula Smith.
NARRATOR: Willy Huntley, former assistant U.S. attorney, prosecuted the case.
WILLY HUNTLEY, Former Assistant U.S. Attorney: Lula Smith was the mother of
Darren Sharp. Darren Sharp had been identified through an investigation as
being one of the largest crack cocaine dealers in the Prichard, Alabama,
area. She was aware that Darren Sharp didn't have any income. However, he
owned several houses, several automobiles. He was able to purchase a car
for her. He paid cash for it.
BOB CLARK: There's no question about her son being a drug dealer. Her son,
when he found out he was going to be indicted, ran. The whole time that she
was being tried, the government says, "If her son will come in, we'll
dismiss. If her son will come in"- it was just a- trying a means of
extorting her son to come in to give himself up. That's the only reason
they tried Mrs. Smith.
WILLEY HUNTLEY: That's exactly true.
INTERVIEWER: What is exactly true?
WILLEY HUNTLEY: That as part of the conspiracy, her son, who was at the
top, was the primary target.
INTERVIEWER: What would have happened if her son came to you and gave
himself up?
WILLEY HUNTLEY: The case against her probably would have been dismissed.
INTERVIEWER: Why do you think they were after you?
LULA MAY SMITH: Because they wanted my son just that bad, so they used me
to do what they had to do with him.
INTERVIEWER: So she was a hostage?
WILLEY HUNTLEY: I don't think she was a hostage. If she was a hostage, it
was by her own creation because she chose to ignore the signs that her son
was giving out - no income, and he can buy houses and clothes and cars and
tractor-trailers, and no work.
INTERVIEWER: And should have reported him?
WILLEY HUNTLEY: No, I didn't say she should've done that. I think she
should have said, "Don't come to my house."
NARRATOR: Lula Smith did not tell her son not to come around, and she
didn't question his various acquisitions. She went to trial.
WILLEY HUNTLEY: The trial lasted about 14 days because of the number of
defendants, and all the different counts we had to prove. And the jury
started reading the verdicts, and the first one came out guilty, and I
think Lula's name was way down near the bottom. I think she was probably
the last person that was indicted. And the verdicts kept coming back,
"Guilty," "Guilty," "Guilty."
And the closer we got to her name, the more I kept hoping, "Please let them
say not guilty." They kept saying, "Guilty, "Guilty," "Guilty," and getting
closer, and I'd pray a little bit harder, saying, "Let them say not
guilty." But it got to her name, and they said "Guilty," too. And you know
the rest of the story.
LULA MAY SMITH: Do I blame Mr. Huntley? If he done admitted to you that he
was sorry that what happened to me, who else could I blame? Could you
answer that one for me?
INTERVIEWER: How do you feel about it now?
WILLEY HUNTLEY: I still say she shouldn't have gone to jail
INTERVIEWER: She shouldn't have?
WILLEY HUNTLEY: No. I said it then she shouldn't have gone to jail.
INTERVIEWER: You were the prosecutor, and you said it then?
WILLEY HUNTLEY: I did.
INTERVIEWER: What was the thought process?
WILLEY HUNTLEY: That the jury would find her not guilty.
INTERVIEWER: You hoped?
WILLEY HUNTLEY: I hoped. But I guess I did too good a job. [www.pbs.org:
Read interviews with the prosecutors]
"TONY": There are a lot of prosecutors who don't feel good about what
they're doing. There are prosecutors who say, "I didn't want this person to
go to prison for such a long time, but it's my job." There are a lot of
judges who've said on record, "I did not want to give that person 10, 20,
30 years in prison, but it's my job!" So if it's a part of your job, you
have to do a good job. You have to put as many people in prison as you can,
whether you want to or not.
JONATHAN TURLEY: You know, there's a bunch of people out there who are told
to arrest as many drug felons as possible. And it goes to a bunch of people
who are told to convict as many drug felons as possible. And it goes to a
bunch of people who are told to incarcerate as many felons as possible. And
all of them have strong incentives through federal grants and state grants.
Often state prosecutors have the added incentive of politics. When they
stand for election they want to say that they've put in more people in jail
than their predecessors and that their rate of conviction is even higher
this year than it was last. The problem is that these statistics ultimately
come down to people.
NARRATOR: Kathleen Kriete is a businesswoman in Fort Lauderdale, Florida.
She has one child, Joey.
KATHLEEN KRIETE: My sister and I were partners in a family business. And
one afternoon in 1992 I got a phone call from some lawyer who was at the
jailhouse down in Fort Lauderdale to tell me that my son had been locked up
overnight and that he had been caught on a drug - in a drug deal and that he
was going to be spending many, many years in prison. And it was really that
cut-and-dried.
And of course, I was in shock, and I didn't believe it. And my sister and I
have no idea how we got down there. It was very quick. But we went down
there, and there he was - very young, scared to death, beard. And we had to
sit there and wait to bail - bail him out for - you know, post bond so that
we could wait for a trial or whatever we had to do. Had no idea what
happened. Couldn't believe it. This just couldn't happen in our house. And
it did. Sorry.
NARRATOR: Joey's father, James Settembrino, divorced and re-married, also
got a call.
JAMES SETTEMBRINO: You have to picture yourself that your - your son or
daughter's in jail. And of course, I'll never forget that - that night when
I got that first telephone call, as he was in jail for the first evening.
It was rather a quick telephone call, and the shriekingness will live with
me till I die, probably, because all he said was, "I'm here. Get me out.
I'll never be able to do 10 years," and broke down for the first time, and
the phone went dead. That's all he said to me. I'll never forget that.
NARRATOR: It happened in 1992.
JOEY SETTEMBRINO: I was 18 years old, and I'd just graduated high school.
And a friend of mine which I'd known for many years called me up one day,
and he asked me if I could get some drugs for him. It was funny because I'd
never sold drugs before. I had used drugs, but I'd never sold drugs.
KATHLEEN KRIETE: The night before, we'd had a slight argument about, you
know, "If the insurance isn't paid, the car is going away." And you know,
that's pretty frightening when you're - when you're 18, and he'd just turned
18. So we - the call came at a good time. He was very vulnerable, and I
guess he said yes.
JOEY SETTEMBRINO: About five days after- five or six days after we
initially spoke, the acid came in. My buddy had it, and he told me that it
was there, and I could come get it. And we went- I went and picked up my
friend, and we were to meet his friend, who he was getting it for, at a
shopping mall.
KATHLEEN KRIETE: When he actually went, got the drugs, delivered the drugs
in a manila envelope, he delivered them to an agent of the Drug Enforcement
group. So he knew. He knew exactly what happened. You know, he knew that he
had been set up. He knew that it was all staged.
INTERVIEWER: Did you have any idea what the punishment would be?
JOEY SETTEMBRINO: No. As a matter of fact, when the cop put me in the car
and he told me I was looking at 25 years, I- I believe I got a little fresh
with him, and I told him I wouldn't do a day. I mean I honestly felt, "I'm
a first-time offender. This is the first time I've ever been in trouble in
my life. You know, I won't- nothing will happen to me. I won't do any time."
NARRATOR: But it soon became clear that Joey, who was supposed to have made
$500 on the deal, was in real trouble.
JAMES SETTEMBRINO: I got an attorney for him, and found out the severity of
it. The attorney told me, he says, "Jim, you know, this- you don't want to
hear this, but he's in bad shape here. He could go to jail for 30 years." I
says, "Thirty years? Are you crazy?" He said, "Yeah, 30 years." I says,
"He's 18 years old." You know, "How can someone go to jail for 30 years for
selling drugs?"
NARRATOR: Before Congress enacted the mandatory minimum sentences, Joey
probably would have received probation. The 1986 federal laws, passed at
the height of the crack cocaine epidemic, raised the stakes enormously. At
that time, Eric Sterling was counsel to the chairman of the House
subcommittee on crime and took an active part in formulating these laws.
ERIC STERLING, President, Criminal Justice Policy Foundation: The work that
I was involved in, in enacting these mandatory sentences, is probably the
greatest tragedy of my professional life. These laws came about in an
incredible conjunction between politics and hysteria.
It was 1986. Tip O'Neill comes back from the July 4th district recess, and
everybody's talking about the death of the Boston Celtics pick, Len Bias.
That's all his constituents are talking to him about. And he has the
insight, "Drugs. It's drugs. I can take this issue into the election." He
calls the Democratic leadership together in the House of Representatives
and says, "I want a drug bill. I want it in four weeks."
And it set off kind of a stampede. I mean, everybody started trying to get
out front on the drug issue. And- and these were committees- I mean, every
committee, Merchant Marine and Fisheries, Interior and Insular Affairs. I
mean, not just the Judiciary Committee, Foreign Affairs, Ways and Means,
Agriculture. You know Armed Services. Everybody's got a piece of this out
there sort of, you know, fighting to sort of get their- their face on
television talking about the drug problem.
And when we- these mandatories came in the last couple days before the
Congressional recess, before they were all going to race out of town and,
you know, tell the voters about what they're doing to fight the war on
drugs. No hearings, no consideration by the federal judges, no input from
the Bureau of Prisons. I mean, even DEA didn't testify. I mean, the whole
thing was kind of cobbled together with sort of chewing gum and baling
wire. Numbers are picked out of air. And we see what these consequences are
of that kind of legislating.
NARRATOR: As a consequence of this legislation, Joey would have to spend a
minimum of 10 years in prison unless he agreed to set up his friends. He
didn't want to do it.
JOEY SETTEMBRINO: I didn't want to do 10 years in jail, but I also, you
know, didn't want to- didn't want to give up one of my friends, either. I
was kind of torn. I was stuck in the middle.
NARRATOR: His parents were desperate.
JAMES SETTEMBRINO: Of course, the first thing is, is that you'll say to
whomever - and in this particular case it was the agents - "Gee, what can I
do to help my son?" And of course they tell you real quick what you can do.
They say to you, "Well, you know, if you work with the government, the
government will turn around and favorably help you get a reduction."
INTERVIEWER: Meaning?
JAMES SETTEMBRINO: Well, meaning that I would go out and try to set someone
else up to help my son.
NARRATOR: The Settembrino family was surprised to learn that information
about any drug dealers could help reduce Joey's sentence. And if Joey
wouldn't cooperate, someone else could do it for him.
JAMES SETTEMBRINO: They say to you, "If you can do this, find people that
have drugs and purchase drugs from them, we'll act favorably in giving your
son a 5k1 reduction." And I said, "Well, why would you do that?" "Well, you
want your son to get reduced, right?" I said, "Yes." "We want convictions,
and that's why we do it."
NARRATOR: Jim Boma, assistant U.S. attorney, confirmed the arrangement in a
letter. Jim Settembrino would try to render cooperation to the government
on behalf of his son. If successful, the government would look favorably on
filing a 5k1 motion on behalf of Joey- in other words, reduce his sentence.
Now in Denver, Colorado, Jim Boma did not feel that it was an unusual
arrangement.
JIM BOMA, Assistant U.S. Attorney: I don't find it logically absurd. I'm
sorry. I just don't find any real flaw in that. I guess the bottom line is
that we're trying to gather information so that we can prosecute narcotics
traffickers. And if someone's willing to try to help us, and also it would
benefit the person being charged, I'm going to more than meet them halfway.
NARRATOR: Jim Settembrino would spend the next few months trying to set up
drug dealers.
JAMES SETTEMBRINO: I tried to find people who were dealing in drugs by
finding people who were using drugs, but it was kind of difficult, very,
very difficult. No one would sell to me. Many, many occasions that I tried
to, but they just looked at me like, "You're the wrong type. You don't look
the part. Something's wrong." And I- I never was able to make a single sale
from it.
NARRATOR: Then, unexpectedly, he thought he had a break.
JAMES SETTEMBRINO: I met a fellow in New York who had been through this
with his daughter. He says, "I know what they want, and I've got some good
connections." And I says, "And you can help?" And he said, "Yes, but it'll
cost you." "So how much will it cost?" "Well, I'll have to make some calls.
I'll be back with you in a couple of days."
He called back and it was $70,000. At that time, I didn't have $70,000
dollars, but I did have a house, so I mortgaged it.
NARRATOR: The money was paid to an informant who identified a South
American smuggler who was bringing drugs into the country. Jim Settembrino,
accompanied by a DEA agent, would then pretend to buy the drugs.
JAMES SETTEMBRINO: We had everything all set up. And then Boma called my
attorney, David Bogenschutz, and David called me from his car phone and
said, "Jim, we got a problem." I said, "What's the problem?" He said,
"Well, the problem is, is that Mr. Boma is unhappy" - that's the prosecutor
was unhappy with my filing. "And I got him on the other line right now."
NARRATOR: The filing was a routine legal appeal for a reduction of sentence
that had to be filed by a certain date, if at all. Jim Boma, the
prosecutor, objected.
JIM BOMA: Basically, people have to pick which horse they want to ride. Do
they want to ride the cooperation horse, or do they want to proceed with
the appeal? If our office has to write an appeal, then that costs the
taxpayers money. So someone gets a choice. Either you cooperate and take
your chances. or you can appeal.
NARRATOR: Mr. Boma then reneged on the deal, stressing that his new
decision was now irreversible. Settembrino was crushed.
JAMES SETTEMBRINO: I says, "Well, what's that have to do with our deal? Why
are you taking such offense?" "We got no deal. We got no deal. I'm not
doing it. I'm not helping you. You're not helping me. You shouldn't have
had him file that. We had deals working. Now we got no deal. I don't care
if your son stays in jail for 10 or 20 years. It makes no difference to
me." And he hung up the phone.
NARRATOR: Once they lost the federal prosecutor's good will, there was
nothing else Joey's parents could do for him. They had spent more than
$100,000, and Joey is now serving the 6th of his 10-year mandatory minimum
sentence, which judge himself pronounced "excessive."[www.pbs.org: Further
details on Joey's case]
JOEY SETTEMBRINO: They say that they want to get the big guy, they want to
get the big fish, and that's why they go about getting all these little
fish, because eventually you get the big fish. But what they don't realize
is that when the big fish finally gets caught, he tells on the little fish,
and he's free. And I think that's what makes the system very, very messed up.
KATHLEEN KRIETE: I think that Joe made a mistake. I think that Joe knows he
made a mistake. I don't think anybody's doubted that. But nobody's ever,
that I've ever talked to- and I've talked to over a thousand people, so
this isn't just a mother talking. Nobody's ever said that he should do 10
years for what happened.
NARRATOR: The mandatory minimum sentences were criticized by the
Congressional Sentencing Commission as early as 1991. In this report, the
commission found that all defense lawyers and nearly half of the
prosecutors queried had serious problems with mandatory minimums sentences.
Most of the judges pronounced them "manifestly unjust." Others were less
decisive.
JEFF SESSIONS: The Federal system is a very effective system to prosecute
criminal cases, and it does a good job at it. You can argue whether the
guidelines are too severe or not. I think that's a debatable issue, and I'm
perfectly willing to discuss that. But if the guidelines called for a
certain sentence, I expected my prosecutors to tell the judge the truth and
let the judge sentence.
NARRATOR: But the mandatory minimums, in effect, deprived judges of their
discretion to sentence, and many were critical.
Judge ROBERT W. SWEET: It's a travesty, quite frankly. It's probably the
most important- one of the most important functions a judge has: assess the
defendant, assess the crime, assess the society and try to reach a just
result. I think that's the way the system ought to work, but because of the
mandatory minimums, it doesn't.
NARRATOR: The 1991 report particularly criticized the transfer of power in
courts from judges - who are supposed to be impartial - to prosecutors, who
are not.
JONATHAN TURLEY: A prosecutor builds a case, that case is supposed to be
built on true evidence. But there's always a tendency to fill in gaps, and
those gaps are often filled in with informers. What's remarkable is that
most criminal cases have people with incredibly low levels of credibility,
people who would clearly say most anything to get out of a problem. And we
have a system that's becoming so coercive that even ordinary people may end
up doing the most extraordinary things in order to get out of that system.
PATRICK HALLINAN, Defense Attorney: You know, when you have a war, there's
only one point in a war, and that's to win. So whatever impedes victory,
you throw out and get out of the way. And so this war on drugs has led to
corruption of the American justice system. It's led to a corroding of the
moral fiber of this country. And I don't mean the drugs, I mean the kind of
things where you can call the wife to testify against the husband, when you
can threaten the child to testify against the father. I mean those sort of
things. And yes, this is- this is part of the war on drugs.
NARRATOR: Patrick Hallinan, a well-known criminal defense attorney in San
Francisco, has had his own experience in the war on drugs.
PATRICK HALLINAN: I had a client who had come and seen me several times
over a period of, well, almost 20 years. And every time he got in some
trouble, he'd come and see me and I'd represent him. And then, in the late
'80s, he got in trouble which was big trouble. And he was being
investigated by a United States grand jury out of Reno as the head of and
one of the directors of a major smuggling operation of Thai marijuana.
NARRATOR: The client was Ciro Mancuso, a successful building contractor who
lived in Squaw Valley, Nevada. In the late '80s, he was accused of being
the mastermind of a $140 million marijuana-smuggling ring.
PATRICK HALLINAN: In preparing the case, it became very evident to us that
they were going to convict him. And when that became evident, I said to
Mancuso, I said, "Ciro, you know, they're going to convict you, and the
punishment's going to be awful. We have to make some deal for you." And so
he said, "Go ahead and make it." He never did admit to me that he really
did the things that he was charged with, but he said, "Go ahead and make
the deal."
NARRATOR: Once the deal was made, it was DEA agent Ron Davis and his
partner, Rich Pierce, who debriefed Mancuso and began working with him. He
was more than pleased with the results.
RON DAVIS: One could not ask more from the person who has cooperated. He
was very a credible, very believable individual. He was very articulate and
had very detailed information, and he fulfilled the commitment to the
government and more.
NARRATOR: For four and a half years, Ciro Mancuso worked hard for the
government.
CIRO MANCUSO: I can't think of anything possibly that I could have done for
them that I didn't do. It was implied that if my cooperation went well,
that that was my part of it, and then that their part of it was to go to
the judge and to make sure that I was fairly treated- in other words, that
vast, tremendous consideration would be given to what I had done at time of
sentencing.
NARRATOR: The cooperation went very well. Drugs were seized, and many
arrests were made.
RON DAVIS: As a result of his cooperation, we indicted, I believe, between
another 20 and 25 other defendants. And I believe we seized off another $10
million to $15 million in drug assets.
NARRATOR: Then in August, 1993, with their own cameras rolling, the DEA
made one more bust.
PATRICK HALLINAN: I was working in my library, and I saw these two figures
come out of the kitchen and up the few stairs into the library. And they
had machine guns. And they ordered me on the floor, and I thought, "My God,
they're going to rob the house." And then they stood up, and I saw across
their chest "DEA," and I realized that these were the cops, and I had this
feeling of relief. And then it dawned on me that they weren't there by
accident.
NARRATOR: Implicated by Mancuso, Patrick Hallinan was indicted and arrested.
INTERVIEWER: What you were accused of?
PATRICK HALLINAN: Well, I was accused in three separate indictments. Each
one got worse and worse and worse, so that in the first one I was- I was
really accused as being the consiglieri of this marijuana-smuggling ring.
In the last indictment, I was charged under RICO with a racketeering- a
racketeering charge, which would have put me in prison for the rest of my
life. And when you read that indictment, it sounded like I was the capo who
was doing the smuggling and planning the operations and marketing the
goods. It was ludicrous, but deadly. It was very dangerous.
RON DAVIS, Former DEA Agent: No federal prosecutor would have gone forward
on a prosecution against Mr. Hallinan if he did not believe that Mr.
Mancuso was telling the truth. This support of going forward to indict Mr.
Hallinan was agreed at the highest level in the U.S. Attorney's office, all
the way back to main Justice.
NARRATOR: Defense attorneys saw this as a case of a dangerously
overreaching prosecution.
JOHN KEKER, Defense Attorney: The war between prosecutors and defense
lawyers ebbs and flows, but there are some fanatic prosecutors who believe
that people who represent people accused of crime are the same as the
people who are accused of crime. And they do not understand either their
function or criminal defense lawyers' functions, so they think that going
after and intimidating criminal defense lawyers is a good thing for fighting
crime.
NARRATOR: John Keker, one of the best criminal defense attorneys in the
country, represented Patrick Hallinan.
JOHN KEKER: Patrick, after learning the evidence, decided and advised his
client that the best thing was to make an agreement with the government.
Patrick turned him over to the government, and Ciro quickly figured out
that what the government would be most interested in is if he could produce
for them the head of a well-known criminal defense lawyer.
CIRO MANCUSO: I was put under to tremendous pressure to cooperate with the
government, including having a direct threat made - and threats followed up
on - to indict my wife. We had two small children. I was told that my wife
would be indicted. She could very easily get a long prison term, and my
children wouldn't have anybody to raise them.
DAVID FECHHEIMER, Private Investigator: Well, Mancuso was in a terrible
spot. Regardless of whether or not you think he deserved to be in that
spot, from his perspective he was in a tight spot, and he'd been offered a
way to lessen his pain. And the way to lessen his pain was to serve up
Patrick Hallinan.
NARRATOR: Private investigator David Fechheimer was hired to help build the
case for the defense.
INTERVIEWER: Why do you suppose the government wanted Hallinan?
DAVID FECHHEIMER: Patrick was among the most successful defense lawyers of
his generation in northern California. He'd been a thorn in the
government's side. He was rich. He was well known. He had a famous name. He
lived in a fancy house. He was just the kind of trophy that these agents
wanted.
NARRATOR: Patrick Hallinan came from a prominent and controversial family.
His parents, Vivian and Vincent, were known radical activists. Vincent
Hallinan was one of the most famous lawyers on the West Coast. He was a
friend of the left and of labor, and he represented controversial figures
in the political arena. His battles with the government were legendary. In
1952 he ran for president on the Progressive Party ticket. His eldest son,
Patrick, would also become visible and controversial.
JOHN KEKER, Defense Attorney: You could prosecute marijuana dealers all
your life and nobody will have ever heard of you. If you prosecute some
well-known criminal defense lawyer, you'll be famous.
NARRATOR: Patrick Hallinan's trial started on January 26th, 1995, in Reno,
Nevada, and lasted seven weeks. Ciro Mancuso was the star witness.
CIRO MANCUSO: My testimony about Mr. Hallinan was pretty much limited to
obstruction-of-justice-type charges and money laundering.
NARRATOR: Yet he testified that Hallinan was the virtual consigliere of his
cartel, and that he gave his stamp of approval to everything Mancuso did.
DAVID FECHHEIMER: Yes, he did get on the witness stand. And yes, he did say
everything he'd agreed to say about Hallinan, but no one believed him. And
Hallinan was not convicted.
NARRATOR: After seven weeks, it took the jury less than five hours to find
Patrick Hallinan not guilty. Mancuso was blamed for the loss of the case.
CIRO MANCUSO: The prosecution lost. And being on their team, the blame for
that, I believe, was shifted as much as possible to me. And at that point,
the betrayal set in.
RON DAVIS: And then the government did a 180, so to speak, on their
commitment towards Mr. Mancuso, basically holding him accountable for the
loss of that trial. So they successfully did discredit him by calling him a
liar. And as a person who was responsible for that investigation, I was
also expendable.
NARRATOR: Ron Davis chose early retirement. The Justice Department and the
prosecution distanced themselves from the case. Mancuso, who hoped for
probation, got nine years in prison.
CIRO MANCUSO: I believe that had the prosecution won the case and gotten a
conviction against Mr. Hallinan that I would not have come back to prison
at all.
PATRICK HALLINAN: And me, I'd have been in deep trouble. The charges for
which I was- the charges that I was confronting carried a potential life
sentence, a minimum of 19 years. They would have picked me up at that
table, from the table where I was sitting and put me in a jail, and I
wouldn't have gotten out for 19 years.
NARRATOR: Hallinan was exonerated, but he had spent three years of mental
anguish and lost a $1.5 million. As a rule, the government does not take on
rich, powerful lawyers. In fact, they don't take on very many powerful drug
lords, either. In another report issued in 1995, the U.S. Sentencing
Commission found that only 11 percent of federal drug trafficking
defendants were major traffickers. More than half were low-level offenders.
ERIC STERLING, President, Criminal Justice Policy Foundation: Fifteen
thousand federal drug cases a year, the bulk of them mandatory-minimum
cases, most of them minor offenders. Only 10 percent of all the federal
drug cases are high-level traffickers. You know, you wonder, like, who's
asleep at the switch at the Justice Department?
NARRATOR: But the Justice Department and the U.S. attorneys must enforce
the laws created by Congress, and Congress wants them tough.
Sen. ORRIN HATCH: In all honesty, I think that when you have people who are
pushing drugs on our kids, and that they are pushing significant amounts of
drugs on our kids or pushing at all, we ought to get as tough as nails on
them. And I don't think that- in many respects, we ought to lock them up
and throw away the keys.
JONATHAN TURLEY, Law Professor, George Washington University: Right now our
population, our jail population, is larger than five of our states. Now,
that is a costly war. We are fast approaching a society not just of
informers, but we are turning into a criminalized society where a
remarkably high number of our population is either in jail or trying to put
the other people in jail.
NARRATOR: How the drug laws affect the life of a community can be seen in
Mobile, Alabama, which has one of the highest federal drug conviction rates
in the country. Take the case of number 33. Clarence Aaron was a
23-year-old student and a promising athlete at Southern University
Louisiana. His home was Mobile. He was the only one of Linda Aaron's three
children who went to college.
LINDA AARON: I've always did domestic work, you know, and I've worked all
my life, but I just couldn't afford to send none of them to college. And
his granddaddy sent him to college, so-
NARRATOR: His father, Martin Clarence Aaron, is a musician and a personal
trainer.
MARTIN AARON: He was the only one that was in college at the time this
occurred. He was- he was trying to get an education, trying to better his
self. The only one in this whole mess that was doing something positive
with the clean- squeaky-clean background was Clarence Aaron. And he is the
fall guy out of this whole mess.
NARRATOR: Clarence Aaron was accused of conspiring with friends to
distribute crack cocaine. He went to trial and was convicted. He was
sentenced to three concurrent life sentences without the possibility of
parole. He started serving his sentence in 1992.
CLARENCE AARON: I just couldn't believe that when the judge told me that-
three life sentences running concurrent. When he said that, I was setting
in my chair, and I was thinking to myself, I say, "Where in the world do I
suppose to start doing three life sentences at? Where am I supposed to
start at, in the middle, at the end part of it, where?" I just couldn't
believe that this was occurring to me. All I'd seen my whole life,
everything that I had strived and stayed out of trouble for all my life, go
down the drain, you know?
LINDA AARON: Honestly, I expected for them to give him probation - I really
did - for the part that he played in this. That's what I was looking for,
at least- at least some years on paper, that's all. Nothing else. Because
when they gave him life without parole, it literally killed me. I didn't
even exist anymore because I couldn't understand it. I said, "How in the
world could these people sit here and just take a young man's life away
like that, 23 years old, try to take his whole life away from him for
something that they know"- and they know, it too. They know they coaxed all
those boys to say what they said. They know that. How can they do that?
NARRATOR: The boys were Clarence's friends from high school and his first
cousin with whom he grew up. The friends were involved in dealing drugs.
Clarence introduced them to people he knew in Baton Rouge who were also
involved in drugs. He drove them from one city to the other, accompanied by
his cousin, and was paid $1,500 for his help.
MARTIN AARON: Traveling with the wrong person, the wrong crowd, he's
guilty. Of being with people going on certain trips, he's guilty. But so
far as the picture that they try to paint him for, he's not guilty. And
he's not- and he don't deserve to be punished as if he's some dope kingpin.
They- the sentencing that they gave him was as if he was a dope kingpin.
This guy didn't even have a brand-new car.
NARRATOR: Dennis Knizley was Clarence's defense lawyer.
DENNIS KNIZLEY, Defense Attorney: Clarence Aaron was one of the worst cases
I've ever had. Clarence tells me that the FBI came to his college classroom
and pulled him out of the classroom and arrested him for possession with
intent to distribute cocaine.
What makes it the worst case I ever had was there was absolutely no cocaine
introduced into evidence. There was no cocaine seen. Nobody- the police had
no cocaine. The FBI had no cocaine. There was no scientific evidence, no
fingerprints, nothing. The entire case was based upon the testimony of what
they call "cooperating individuals."
NARRATOR: The cooperating individuals were Clarence Aaron's friends from
high school and his first cousin. When the friends were finally caught
dealing drugs, they all, including the cousin, turned informant and
testified against Clarence. They all had prior criminal records, and they
were all facing life in prison. Clarence was the only one with no record
and no hard evidence of any sort.
The U.S. attorney's office in downtown Mobile prosecuted the case. J. Don
Foster is the U.S. attorney for the southern district of Alabama.
J. DON FOSTER, U.S. Attorney: Well, do you understand that he arranged for
the purchase of some nine kilograms of cocaine? Can you imagine how much
damage nine kilograms of cocaine, or converted to crack, can do in a
community or in this country? Nine kilograms.
DENNIS KNIZLEY: There was not any cocaine found anywhere, and certainly no
cocaine was never put on any scale to weigh to say, "Okay it was this much
cocaine, which then support this"- simply and totally, the entirety of the
witnesses against him were people who were exchanging their testimony for
their liberty.
ERIC STERLING, President Criminal Justice Policy Foundation: There don't
have to be drugs. People are amazed. "Well, aren't there drugs?" There
don't have to be drugs. All there have to be are witnesses who say, "I saw
drugs" or "He said there were drugs."
NARRATOR: There don't have to be drugs because in federal cases oral
testimony is enough. So when a small technical amendment to the mandatory
minimums was issued in 1988, it created a huge change in the prosecution of
drug offenders. The conspiracy amendment stipulated that the lowest person
in a so-called drug conspiracy could be punished with the maximum sentence
designed for a kingpin.
ERIC STERLING: If the mandatory minimums were a result of haste and excess
by Congress, "conspiracy" as applied to these mandatories was completely by
oversight and by accident. It was submitted as part of a simple "technical
corrections" amendment. No one even thought at all about what the
implications were of applying conspiracy.
NARRATOR: Its implications were enormous and would change thousands of lives.
ERIC STERLING: Mandatory minimums designed for kingpins with very long
sentences, conspiracy bringing in the lowest level offenders who become
eligible for those. The only way they can avoid those mandatories is to
provide substantial assistance to a prosecutor. And if it means telling a
wild story to avoid spending almost life in prison without parole, there
are many people who will do that.
NARRATOR: Defense attorneys had their work cut out for them.
GORDON ARMSTRONG III, Defense Attorney: There is no case that's not a
conspiracy case. If I possessed it, I had to get it from somebody or
somewhere, so technically I conspired to get it. Every case is a conspiracy
case, but conspiracy cases are much easier to prove.
BOB CLARK, Defense Attorney: We can call each other on the phone and make
an agreement. Once the agreement's made, 30 minutes later you say, "Well,
no, I don't think I want to do that," and call it off, you've already
committed a criminal offense by making the agreement.
INTERVIEWER: You can be indicted?
BOB CLARK: You can be indicted and sent to prison.
INTERVIEWER: How many witnesses do you need to indict somebody and convict
them?
LYN HILLMAN-CAMPBELL, Assistant Federal Defender: Under the conspiracy law,
you only need one. So one person says you're a drug dealer, you could get
convicted and go to jail.
INTERVIEWER: That's it? I can put you in jail tomorrow like that?
GORDON ARMSTRONG: If the government thought I was involved in drugs, and
you told them I was involved, then I would probably get indicted. It's that
easy.
Sen. JEFF SESSIONS (R), Alabama: Well, you have to be careful. A good
prosecutor must always be careful, and if there's not corroboration on the
testimony of a co-conspirator drug dealer, you should not proceed with the
case. You should have absolute confidence that the facts given to you are
true or you should not proceed.
NARRATOR: Yet after the conspiracy amendment was enacted, the prison
population swelled. Within six years, the number of drug cases in federal
prisons increased by 300 percent. From 1986 to 1998, it was up by 450
percent. Not only were there more prisoners, but they were serving much
longer sentences as a result of conspiracy charges. [www.pbs.org: More on
the laws and statistics]
The social costs were also rising. Charged with being involved in a drug
conspiracy, Dorothy Gaines is serving a 20-year sentence.
DOROTHY GAINES: "Conspiracy" is so broad. Anyone can get caught up in
conspiracy- just knowing someone. That's what I constantly tell my kids-
just being around someone. But it don't take 20 years to learn your
mistake. I know that I got caught up by being associated.
NARRATOR: Dorothy Gaines agrees that she did not always keep very good
company. Several times in her life she was involved with men who either
used or dealt drugs. When one of them was caught, he implicated her in
exchange for a reduced sentence. When the case was thrown out of state
court for lack of evidence, the federal government picked it up and added a
charge of conspiracy with a drug-smuggling ring.
When she went to trial, her children were certain she'd be acquitted.
NATASHA GAINES: I figured my mother would get a "Not guilty" verdict. There
was no evidence. There were four people on trial with her, and everybody
was putting evidence on. "Well, this is exhibit A or exhibit B for this
defendant or for this defendant." There was never any evidence placed on
the table or bar for Dorothy Gaines.
NARRATOR: Forty-year-old Dorothy, mother of three and grandmother of two,
was found guilty and sentenced to 20 years in prison. Her then 20-year-old
daughter, Natasha, had to leave college and become the head of the family.
NATASHA GAINES: I had to become Mother. I had to reverse from sister to
mother because I had to take on my sister and brother. I was at an age at
that time that I'd learned to do for myself. They didn't. They were 11 and
10 years old.
DOROTHY GAINES: Both of them have failed twice since I've been locked up.
That's the big worry. They tell me all the time that they are doing the
time. "Mamma, when are you coming home?"
NARRATOR: They've pinned their hopes on her appeal lawyer, Lyn Campbell,
who firmly believes in her client's innocence.
LYN HILLMAN-CAMPBELL: I've read all of the evidence in the case, the entire
trial, and there's, like, a little voice in the back of my head that says,
"Wait a minute. There's just nothing here." It's just these five drug
dealers, and who have, you know, great, big reasons not to tell the truth.
You know, some of them had guns when they were caught and weren't
prosecuted for the guns- you know, extensive criminal histories,
everything. And you've got this lady who has no criminal history to speak
of. She doesn't have two nickels to rub together. And it just doesn't make
sense to me.
NARRATOR: U.S. attorney J. Don Foster reviewed the case.
J. DON FOSTER: From my review of the record in this case, there is no doubt
in my mind about her guilt. She knew a lot about what was going on. Whether
she knew absolutely everything, I don't know. But she knew enough to be on
the board of directors, in effect.
INTERVIEWER: Because the co-conspirators said so?
J. DON FOSTER: Confirmed by other witnesses.
LYN HILLMAN-CAMPBELL: Well, I guess if you call getting five guys in a room
and saying, "Well, is that true what he said? Is that true what he said?"-
I mean, that's pretty much the way they corroborate. When I think of
corroboration, I think hard evidence, phone records, beeper records,
unexplained money. You know, it doesn't take a lot to corroborate that
someone's a drug dealer. But when you don't have any of those things, and
you see it in case after case after case, how easy it is to come up with
that stuff- you know, a snitch corroborating a snitch is not corroboration,
to me.
NARRATOR: Bob Clark, a well-known and outspoken defense lawyer in Mobile,
Alabama, will not represent snitches.
BOB CLARK: Snitches are used by the government because it makes their life
a lot easier. You put everybody in prison, and then you cut deals with
those that are willing to rat on everybody else. And people generally tell
the government what they want to hear. In fact, when they try people here
in the southern district of Alabama, they put all the rats and the snitches
together in one cell. And after they testify, they go back to the snitch
cell and compare stories and compare notes.
NARRATOR: In the case of Dorothy Gaines, her lawyer moved for a mistrial
when he learned that the informants who testified against her were
returning to their holding cell, comparing notes. The judge found that as
long as the witnesses assured him that they did not discuss their
testimony, he couldn't see any problem with that. The motion was denied.
J. DON FOSTER, U.S. Attorney: If the judge tells them not to talk and they
talk, they're in violation of the judge's order. And the judge does tell
them not to talk with each other, does tell them not to tell each other
what they're going to- what they have testified to. So if they've- if they
obey the judge's orders, which they certainly should do, they're not going
to be doing that.
BOB CLARK: [laughs] Do I feel that snitches lie? Only when their mouth is
moving. You know, if they're asleep, most of the time they don't, but- oh,
they'll say anything. They're prostitutes. I mean it is- I don't know how
you could run a criminal justice system without the use of informants, but
at the same time, it allows itself for such abuse. I mean absolutely
unbelievable abuse.
INTERVIEWER: Why do you believe these people? I mean, they're felons, they
have everything to gain.
J. DON FOSTER: Well, you can be sure that defense attorneys remind juries
of that every chance they get. They are- the juries are bombarded with the
fact that these people are criminals themselves and that they may be trying
to help themselves out by testifying, but it's hard to make up a story that
fools 12 people.
ERIC STERLING: We believe in the presumption of innocence, as a society.
Once you get in the courtroom, that presumption is very, very thin. It's
not a whole lot of protection. And when you have a witness who says, "Yes,
I am getting a deal, but I was there, and this is what the defendant did,"
jurors will say, "Well, he must"- you know, "Even if I don't believe all
that he's saying, I believe enough of it, and that enough is proof beyond a
reasonable doubt for me."
NARRATOR: Tony told us that in his experience, not only can juries be
misled, but that informants often mislead the prosecutors.
"TONY": I would like to believe that the majority of the prosecutors are
using witnesses they believe to be telling the truth. The problem is, they
have no idea if they're telling the truth.
For example, when I was in prison, I was asked to cooperate in a case that
would have been very dangerous to my family. It would have possibly gotten
them killed, and I told the government I couldn't do it. So I mentioned
this to my cellmate, that there was this case that was probably my ticket
to walk out the door, and I told him I couldn't do it. And he said, "Are
you crazy?" He said, "If you can't do it, I'll do it. Just get me some
details about the case and get me a picture of this guy, and I'll call the
government, and I'll tell them that I've been doing business with him."
If I would have gone along with that, he would have all the information
which I had, plus any information that he wanted to make up. He would have
all the details. He would have a photograph so he could identify the guy,
and he probably would have gotten himself out of prison with this
testimony. And informants do that all the time.
ERIC STERLING: The entire criminal justice system knows that perjury is the
coin of the realm. In New York City, police officers call it "testalying."
In Los Angeles, they call it "the liars club." Lying- everybody knows that
lying takes place. The prosecutors don't feel bad about it. This is simply
part of the system. They justify it by saying, "We have to get the bad guy."
NARRATOR: In Uniontown, Alabama, getting the bad guy turned out to involve
the whole community. Almost every family was affected when the government
indicted more than 70 people, accusing them of conspiracy to possess with
intent to distribute 150 kilograms of cocaine.
1st
