The Federal Cooperation Scheme

January 10, 2012 Cooperating Witness

The Sunday Miami Herald had a page-one story on the Scott Rothstein criminal enterprise. While most of the scandalous events have been publicized by now, one quote caught my attention. Former US Attorney Jeffrey Sloman, in response to the cacophony surrounding Rothstein’s lack of credibility, is quoted as saying “some of the most despicable people have been great witnesses.” Jeff’s observation goes right to the heart of the cooperation flaw in our justice system.

While Jeff is making the point that Rothstein could be a star witness for any upcoming prosecution,s the unintended point is whether the justice system should allow it. Con artists like Rothstein are great witnesses to make an accusation because they are unconstrained by the oath and any sense of conscience. The Rothsteins of the world see their “cooperation” as just an extension of their fraudulent scheme. They sell questionable testimony for a reduced sentence.

This is a flammable mixture. Deals like this are generally tolerated by the excuse that cross-examination combined with cautionary jury instructions is enough to counterbalance the threat of perjury. In Hoffa v. United States, 385 U.S. 293, 311 (1966), the Supreme Court decided that hefty cooperation deals didn’t violate due process because the defendant had the safeguard of cross-examination. While I am a big believer in the efficacy of cross, it can’t solve this problem.

The most difficult lies to expose are not the blatant ones, but rather the half-truths which are usually the biggest lies. The cooperator can truthfully testify to his own crimes and then just prevaricate by adding someone as his co-conspirator. Rothstein has a long list of law partners, bankers and strippers to select from. Usually there is no method to independently prove or disprove this type of testimony. There is no DNA to expose a wrongful conviction.

Adding to this problem is that the defense usually has no access to interview the cooperator because he is jealously guarded by the government. (One of the few exceptions is the Rothstein monster deposition.) This one-sided access combined with government “over interviewing” the cooperator is a dangerous mix. The so-called “interviews” are usually prep sessions how to evade cross-examination.

Stephen Trott, a former high ranking DOJ official and presently Senior Circuit Judge on the Ninth Circuit, warned prosecutors: “Criminals are likely to say and do almost anything to get what they want, especially when what they want is to get out of trouble with the law.  This willingness to do anything includes not only truthfully spilling the beans on friends and relatives, but also lying, committing perjury, manufacturing evidence, soliciting others to corroborate their lies with more lies, and double-crossing anyone with whom they come into contact, including– and especially–the prosecutor. A drug addict can sell out his mother to get a deal, and burglars, robbers, murderers and thieves are not far behind. Criminals are remarkably manipulative and skillfully devious. Many are outright conscienceless sociopaths to whom “truth” is a wholly meaningless concept. To some, “conning” people is a way of life. Others are just basically unstable people. A “reliable informer” one day may turn into a consummate prevaricator the next.”

Our system of justice is deeply committed to using and rewarding cooperators. This will not change. Those who run the system see it as the lesser of two evils, but isn’t the choice between two evils still evil? Unfortunately the day will come when we can’t tell the difference between what is necessary and what is merely expedient.