Saturday, August 11, 2012

When is a bribe not a bribe?

I love the 1995 case U.S. v. Boyd.  After sitting through a four month trial that ended in a guilty verdict, the trial judge overturned the conviction and granted the defendant a new trial.  Why?  The prosecutor's star witnesses against the defendant were actually incarcerated themselves.  That, in itself, is rarely a problem.  Instead, what bothered the trial judge was that the prosecutors were bribing their prisoner-witnesses leading up to and during the defendant’s trial.  The gifts and favors included providing the prisoner-witnesses with access to illegal drugs, access to visitors with whom they had sexual relations, prosecutor-funded birthday parties, multiple items of clothing, and even phone sex with the prosecutor’s paralegals.  In fact, the litany of gifts and favors was literally so amazing that it makes the case worth reading in its entirety—something that can rarely be said of a judicial decision.

In Boyd, the bribes were clear.  In fact, when the government had the nerve to appeal the trial judge’s decision to grant a new trial, the appellate court stated, tongue-in-cheek, that while it is possible that the “witnesses were simply very good bargainers, who obtained more consideration from the prosecution in exchange for their testimony than most witnesses do,” the trial judge’s reversal of the conviction must stand. 

But when is a bribe not a bribe?  What if, instead of giving their prisoner-witnesses phone sex, and access to actual sex, the government merely gave them the birthday parties and the multiple items of clothing?  And let’s change the facts a bit further: what if, instead of the birthday parties and clothing, the government gave them slightly different, but still non-sex related favors, like cash to buy necessities while incarcerated, and assistance locating housing upon their release from prison?  Is that bribery?  No—at least according to one appellate court.

In Statev. Anderson, the defendant appealed his conviction, arguing, in part, that a police detective bribed the government’s prisoner-witness.  How?  By putting cash in her jail account, and by helping her locate housing upon her release from custody.  However, unlike the judge in Boyd, the trial judge in Anderson found this to be okay.  Why?  Because the detective explained in a post-conviction hearing “that she placed money into the [witness’s] jail account [because] it was her experience that [witnesses] were better able to focus on upcoming trials when they had necessities.”  While there was apparently no explanation offered for the housing assistance, the appellate court upheld the trial judge’s ruling: “The [trial judge] found the detective credible.  We discern no basis to disturb the [trial judge’s] order as to this issue.”

Now, in fairness, there appears to be a big difference between Boyd and Anderson, even beyond the sexual nature of the benefits.  In Boyd, the gifts and favors were hidden from the defendant and were not discovered until after trial; in Anderson, the gifts and favors were disclosed, if not before trial, at least during trial.  This could be a huge difference because, in Anderson, the defense lawyer probably had the opportunity to demonstrate the prisoner-witness’s pro-government bias to the jury. 

But the ruling in Anderson still misses the point.  Aside from failing to explain the housing assistance benefit, isn’t the detective’s explanation, even if true, the very definition of bribery?  Imagine if a defense lawyer gave  prisoner-witnesses money so that they could be “better able to focus” (wink, wink) on the defendant’s upcoming trial.  Is there any prosecutor or judge in the country that wouldn’t view that as bribery?  Is there any defense lawyer (who values his law license) that would even dream of paying a witness (other than an expert witness) in the first place?  In light of the Anderson case, should defense lawyers think about paying incarcerated witnesses to ensure their heightened "focus" at trial?

These questions notwithstanding, it appears that the government sometimes pays even its non-expert witnesses for their “focus” at trial—something that should reasonably be expected without special gifts.  So what does this mean for defense lawyers?  Two things: (1) be sure to file a pretrial discovery demand that insists on the disclosure of all such payments, in all of their forms, and regardless of how the government chooses to label them; and (2) be prepared to demonstrate to the jury that, if it looks like a duck, walks like a duck, and talks like a duck . . .  

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