What to Watch for in the FIFA Case, Part 2: How the Government's Story Develops

06/11/2015 02:58 pm ET | Updated Jun 11, 2016

This is one of a series of posts discussing what the FIFA case might tell us about the American criminal justice system. Click here for the introduction, and here for "Part 1: Pretrial Publicity."

As the FIFA case develops, we'll continue to hear more about what happened--who did what, and who knew what was going on. We've already seen the indictment, which sets forth a series of accusations based on the evidence presented to the grand jury. We've heard about certain defendants' guilty pleas, with the accompanying factual admissions; more such pleas and admissions are virtually certain to come. If any cases proceed to trial, we'll hear about in-court testimony and the resulting verdicts.

At the end of this process, we'll have a pretty comprehensive account of the FIFA story. We may instinctively treat that account as being factual, objective, and reliable--the equivalent of, for example, a trustworthy reporter's story about an event that she personally observed.

Will that reliance be justified? Will that ultimate narrative be something we can trust? I have serious doubts.

At the outset, it's worth remembering that any factual account from a witness is just that--a human being's statement about what happened. (There will also, of course, be documents and other tangible evidence, but these documents never tell the whole story; this is why the government relies so heavily on witness testimony.)

With any such statement, we obviously have to account for the possibility of not only honest perception or memory errors, but also deliberate deception. In particular, the witnesses interviewed early on in a criminal investigation are often those with some reason to be less then entirely forthcoming. They may themselves be suspects, or may be close enough to the alleged conduct that they know they could easily become suspects. They may have positive or negative relationships with the investigation's targets, giving them an incentive to direct attention toward or away from certain persons.

And this is where it gets worse. At some point, often very early on, government agents will form opinions about what actually happened. This may be based on their preexisting expectations of what they would find, or on the accounts they have heard in their initial interviews. Then, if subsequent witnesses tell them something different, these later witnesses may be pressured--sometimes quite explicitly--to conform their accounts to what the government expected to hear.

Agents may tell these witnesses, for example, that the investigation is still open and they haven't finally settled on who will be criminally charged. They will often remind them that lying to a government agent is a criminal offense. Other consequences may be floated--agents may suggest, for example, potential immigration or child-custody consequences for those who continue in their refusal to "tell the truth." (These aren't conspiracy theories--I've had examples of all of these in my own cases.)

At that point, what's a witness with a "nonconforming" story going to do? Ideally, she'll stand firm based on her best recollection. Some do. Others, though, read the tea leaves and understandably decide to adapt their accounts to what the investigators obviously want to hear.

This is especially problematic in cases, like the FIFA case, that involve alleged white collar or corruption-related offenses. In a more "traditional" criminal case--a bank robbery, for example--the alleged conduct is often clear-cut and obvious; Mr. A either did or did not demand money at gunpoint. Witnesses may or may not be honest and accurate in their accounts, but often there isn't much room for interpretation as to the conduct itself.

FIFA-type cases are much different, with the evidence typically being much more complex and nuanced. For example, as in many similar cases, the FIFA indictment alleges that illicit payments were disguised as payments for "consulting services." It's generally not illegal to pay someone for actual consulting services; it may be illegal to make bribes or other payments disguised as consulting payments. If the recipient really does provide consulting services, the government may allege that they were inflated (or that the "consulting" wasn't really necessary) in an effort to provide a legitimate-looking pathway for bribe money. So in a given case, was this really a "consulting fee" or something else? And who all knew about what was going on?

It's not hard to imagine a witness, gradually getting the sense that the investigators aren't buying his story, to start shading his account in a way that might be more satisfying. He may eventually "remember," for example, that yes, we all knew Ms. B's consulting services weren't really necessary, and now that I think about it I do think Mr. C joked about that and said we all know what those checks are really for. (This is without even addressing the special problem of the "cooperating" witness, which will be the subject of a separate post.)

The result can be a disturbing Darwinian process in which accounts that match what the government wants to hear get propagated throughout the investigative process, while those that don't are altered through pressure or simply discarded as unreliable. This propagation continues as defendants start entering guilty pleas--which may be genuinely based on true acknowledgments of guilt, but may result instead from practical assessments of likely trial outcomes in cases in which all of the government's evidence seems to line up perfectly.

Then, once those pleas are entered, they're viewed as further evidence of the reliability of the accounts that led to them in the first place. In the end, we have a mass of testimony, witness statements, and court documents--but, if we look closely, a troubling sense that the sum total of these may be much less reliable than we would have hoped.

Again, none of this is to suggest that any or all of the FIFA defendants are in fact wrongfully accused. They may be; or, every one of them may be fully guilty of the mountain of corruption alleged by the government. It doesn't matter. The point is that because of the systematic distortions caused by the way the federal government builds FIFA-type cases, we'll never truly know with any confidence what really happened. That's a problem, and it's one of the government's own making.