THE MIAMI HERALD - Sunday, August 9, 1998

By DAVID KIDWELL Herald Staff Writer

Emboldened by a maverick court ruling 2,000 miles away, a traditionally conservative federal trial judge in Fort Lauderdale broke with tradition this week and launched himself into a national debate over whether prosecutors should be able to reward criminals for their testimony.

In a 31-page ruling that is the talk of the local criminal bar, U.S. District Judge William J. Zloch threw out the testimony of three accused drug dealers on grounds it was solicited with a prosecutor's promise of a reduced sentence, a violation of federal bribery laws, he ruled.

More than a dozen preeminent defense attorneys and high-level prosecutors interviewed agree the ruling itself, like a similar one by a federal appeals court in Denver in July, is likely to be overturned and in the end go nowhere.

The Denver ruling has already been set aside to be reconsidered. Congress has already moved to amend the bribery laws. And most lawyers on both sides, although polarized on whether Zloch's ruling should hold up, agree it probably won't.

But the rulings have given new life to a decades-old debate on the fairness of government cutting deals.

Defense lawyers throughout Florida and the nation have seized the opportunity to engage a crusade to help curb a growing parade of federal inmates from ``jumping on the bus'' -- a practice of racing to give federal prosecutors what they want, whether it's true or not, in exchange for freedom.

``Is there going to be a tidal wave of judicial reform? No way,'' said Miami lawyer Jeffrey Weiner, past president of the National Association of Criminal Defense Lawyers. ``They are always going to be allowed to play this game. . . . There is no way the Congress or the judiciary is going to say the government cannot reward corroborators.''

Instead, defense attorneys and civil libertarians bucking anti-crime fervor are pinning most of their hopes on public opinion -- on Congressional hearings and C-Span debates and Nightline episodes and newspaper editorials.

``What I really like about this whole thing is that now there's an agenda that has to be complied with,'' Miami defense attorney Roy Black said. ``There's going to have to be hearings, testimony is going to have to be taken, and this is something that is finally going to have to enter into the national debate.''

Black and others come equipped with stories of federal inmates who, looking to cut better deals for themselves, hire private investigators to dig up key facts on hot prosecutions as a way to manufacture marketable lies, of impromptu jailhouse seminars where inmates exchange information about cases, of specific cases where federal informants have been caught in lies.

One high-profile example came in 1996, when federal prosecutors in Miami called 27 witnesses from the U.S. prison system to testify against accused cocaine smuggling kingpins Willie Falcon and Sal Magluta, who was represented by Black.

The jury, which heard in detail all the deals that had been cut for the testimony, rejected it all and voted for acquittal.

Prosecutors argue that the Magluta case illustrates why singing jailbirds are treated with intense skepticism, because if prosecutors don't weed out the liars -- defense attorneys certainly will.

``Juries simply don't miss this stuff,'' former U.S. Attorney in Miami Kendall Coffey said. ``We have one of the best criminal defense bars in the country right here in the Southern District, and they are given huge latitude to pound away at these witnesses and that's the way it should be. Let's trust our juries.

``Prosecutors don't want to lose cases they take to a jury, and they certainly don't want to be embarrassed,'' Coffey said.

He and others argue that the real underlying issue is a ``universal frustration'' by defense lawyers and federal judges over 1987 federal sentencing guidelines enacted by Congress that essentially stripped almost all discretion in sentencing from judges and handed it to prosecutors.

Defense attorneys hope the renewed debate will prompt Congress to relax those guidelines, to require prosecutors to corroborate the testimony of deal-cutting informants and to give a modicum of sentencing discretion back to judges.

Meanwhile, the Denver ruling has prompted a flurry of legal filings throughout the nation in the long-shot hope other judges will follow in kind. Most lawyers -- even defense attorneys -- agree it's not likely.

``I think this whole thing is going to have a short shelf life,'' said Neil Sonnett, a Miami defense attorney and former U.S. prosecutor. ``There's no real danger of cases being lost. It's not likely to create any logjams or interminable delays.

``The real practical effect is that the issue is being highlighted, and more people will be aware of the overuse of government informants who have an incentive to lie.''

Zloch, 53, a former Notre Dame quarterback and 1985 Ronald Reagan appointee, is considered among the most conservative of federal judges and an unlikely candidate to step out front on such a controversial issue.

Defense attorneys believe, however, his interpretation of the law is flawless.

On Tuesday, he threw out the testimony of three key government witnesses against 73-year-old Oslet Franklin Lowery, accused of cocaine smuggling along with three others. His three co-defendants were allowed to make plea agreements in which prosecutors agreed to request reduced sentences in exchange for their testimony against Lowery.

Lowery's defense attorney, Philip Horowitz, argued that the deal violated a 50-year-old federal bribery law which pertains to anyone who ``directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony under oath. . . .''

Zloch agreed, saying the law is clear and applies to everyone, including the Justice Department, which ``may not pick and choose which laws it will follow and which it will disregard,'' he wrote.

The opinion essentially mirrors a similar July 1 ruling from a three-judge panel of the U.S. Court of Appeals for the 10th Circuit in Denver, which threw out the drug conspiracy and money laundering convictions of a woman named Sonya Singleton on identical grounds.

Even though defense attorneys had been attacking the deal-making practice for decades, this was a novel defense concocted by Singleton's attorneys.

Within days of the ruling, the full panel of 10th Circuit judges decided to vacate the ruling and reconsider it before all 11 appellate judges. Oral arguments are set for November.

In addition, bills already have been filed, and Congress is expected to quickly amend the bribery law and exclude from it these plea deals.

Prosecutors in Fort Lauderdale are appealing the Zloch decision to the U.S. Court of Appeals for the 11th Circuit in Atlanta, and from there it will likely go higher.

Most agree that even in the unlikely event the U.S. Supreme Court should agree with Zloch's interpretation of the bribery law, the law itself will probably be changed by the time the High Court considers the issue.

While the issue is under debate, however, prosecutors are expected to follow Zloch's own suggestion and stop pinning the promise of reduced sentences specifically to an informant's testimony, but to his overall cooperation.

While the bribery law ``explicitly prohibits giving, offering or promising a thing of value for or because of testimony, it does not preclude a reward for all other forms of substantial assistant,'' Zloch wrote. ``Nor does it preclude a witness from testifying at trial.''

NO TRADING OF TESTIMONY FOR LENIENCY, JUDGE SAYS

Wednesday, August 5, 1998 - Sun Sentinel (Florida)

By LARRY LEBOWITZ Staff Writer

A ruling that could prove troublesome for prosecutors and law enforcement became law in one Florida courtroom when a Fort Lauderdale federal judge declared on Tuesday that the government can no longer promise sentencing leniency to witnesses in return for testimony against co-defendants.

U.S. District Judge William J. Zloch's ruling is thought to be the first of its kind in the nation, according to Justice Department officials, defense attorneys and legal scholars.

Zloch issued his written ruling on Tuesday, barring three men who have already pleaded guilty to drug charges from testifying at the upcoming trial of the remaining defendant, 73-year-old Oslet Franklin Lowery.

Even though trading lighter sentences for testimony has been an integral part of the American criminal justice system since the 1870s, Zloch says prosecutors are violating federal bribery laws prohibiting anyone from buying the testimony of a trial witness.

Prosecutors have "quite simply, purchased the testimony of the co-defendants through promises of leniency," said Zloch, who issued an oral ruling in the case two weeks ago. "Each co-defendant, therefore, has every reason to fabricate, falsify or exaggerate his testimony in an attempt to curry favor with [prosecutors). . .."

That ruling did not become law until Zloch entered his written order on Tuesday explaining his decision.

For the short term, Zloch's ruling will create a modicum of chaos in the South Florida federal courts because testimony that would be admissible in some courtrooms is no longer permitted in Zloch's.

"I guarantee you, the government is very shook up by this ruling," said Miami attorney Jeffrey Weiner, a past president of the National Association of Criminal Defense Lawyers.

Adalberto Jordan, chief of the appellate division at the U.S. Attorney's Office in Miami, said he expects to receive swift approval to challenge Zloch's ruling from the Justice Department and Solicitor General's Office.

"We respectfully disagree with Judge Zloch's order, as we argued in court," Jordan said.

So do at least two other South Florida federal judges: Federico P. Moreno and William P. Dimitrouleas have rejected similar arguments. Several motions seeking to dismiss or suppress testimony are pending before a half-dozen local federal judges.

But Zloch's ruling joins a growing national debate over plea bargaining. Defense attorneys have argued that witnesses, influenced by the hope of obtaining immunity or a reduced sentence, will promise to testify to anything desired by the prosecution.

On July 1, a three-judge appellate panel in Denver tossed out the money laundering and conspiracy conviction of Sonya Singleton because the testimony of her co-conspirators was "purchased" in return for recommended sentencing leniency.

The Singleton decision, which is headed for a showdown before the U.S. Supreme Court, set off a slew of motions by defense attorneys nationwide seeking to suppress key testimony or dismiss entire cases.

The 10th U.S. Circuit Court of Appeals vacated the Singleton decision 10 days after it was issued, pending a rehearing before the entire panel in November.

Zloch's ruling, like the Singleton decision, is hooked on the federal bribery law that prohibits giving, offering or promising anything of value to a witness for or because of his testimony.

The Justice Department has argued that Congress never intended for the law to apply to pacts between prosecutors and defendants. But Zloch, who has a reputation as one of the more conservative judges in a conservative judicial district, says a "plain language" reading of the law doesn't exempt prosecutors.

"If the judicial process is tainted by the admission of unreliable testimony induced by a defendant's promises, it is no less tainted by the identical actions of a prosecutor," Zloch wrote.

Several law-and-order members of Congress have reacted to the Singleton ruling with bills that would exempt prosecutors and plea bargains from the bribery law.

Moreno said Congress "clearly intended to exclude plea agreements between a defendant and a prosecutor" and that "government cannot be expected to depend exclusively upon the virtuous in enforcing the law."

While legal experts are debating whether the Singleton ruling will seriously disable the government's investigatory and prosecutorial powers, it could prove to be a double-edged sword for defense lawyers.

"If you want to go to trial, it helps," said Miami attorney Philip Horowitz, who successfully argued to suppress the testimony against his client, Lowery. "If you have a client who wants to cooperate and is willing to testify, it's going to hurt. The bottom line is I can't buy testimony and neither should they."

Some legal observers say the rulings are indicative of the growing frustration among federal judges whose discretionary power has been eroded by strict sentencing guidelines and mandatory minimum terms for drug crimes. Some judges and defense attorneys bristle when hard-core criminals with information to trade wind up with shorter prison terms than low-level associates with little to barter.

"The Department of Justice does not ensure justice," said Weiner. "You have a system where the little people are getting slammed with draconian sentences, and the higher-ups are cutting deals."

The sentencing guidelines, enacted in 1987 as part of the War on Drugs, have placed most of the power to reward cooperating witnesses with prosecutors.

"Many district judges, including this one, have expressed frustration at minimum-mandatory sentences and resulting reductions available to those who are higher in the criminal venture hierarchy and not available to those with little information and thus little testimony to provide," Moreno noted. "Nevertheless, Congress has maintained its position to reward cooperation and testimony with a reduction in the sentence."

For further commentary on federal case law, visit these criminal justice web sites:

The National Association of Criminal Defense Lawyers (NACDL)

Punch and Jurists - The Cutting Edge Guide to Federal Criminal Law

We the Sheeple - A Criminal Justice Bulletin Board