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What to Watch for in the FIFA Case, Part 3: The Special Problem of the 'Cooperating' Witness

06/15/2015 06:46 pm ET | Updated Jun 15, 2016
JOHN MACDOUGALL via Getty Images

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, here for "Part 1: Pretrial Publicity," and here for "Part 2: How the Government's Story Develops."

The announcements that several defendants in the FIFA case have pled guilty and are cooperating with the government signaled that this case will showcase one of the most controversial aspects of the American justice system -- the federal government's practice of giving certain defendants more lenient sentences in exchange for their testimony against others.

The practice is straightforward. In many multi-defendant cases, initial targets are told what types of sentences they can expect upon conviction, and then given the opportunity to reduce those sentences through "cooperation" -- typically in the form of testimony against other defendants. The reductions can be dramatic; sentences that would otherwise be measured in decades can drop to a few years or even probation. It's common knowledge among both prosecutors and defense attorneys that this type of "cooperation" is often a defendant's most realistic shot at salvaging some part of the rest of his life.

It's also a deeply troubling system. Whether it's even remotely compatible with fairness and justice depends on how it works in practice. If, as prosecutors contend, "cooperation credit" is simply a reward for "telling the truth," it's at least theoretically legitimate. If, on the other hand, it's a way of essentially purchasing specific testimony -- "if you say X, you'll get less time" -- we'd probably all agree that such a practice is deeply repugnant and thoroughly inconsistent with any notion of fair play.

In fact, it's the second of those descriptions that best fits the federal cooperation system, as anyone who's seen the system at work knows. Here's why.

First, if prosecutors merely want to compel someone's testimony without seeking to influence the content of that testimony, they don't have to offer any sentencing leniency. Testifying in a criminal case isn't optional; a prosecutor can simply serve a subpoena on a witness, at which point the witness is legally compelled to show up and testify under oath. If the witness "takes the Fifth" and claims that his testimony might be self-incriminating -- one of the few legally recognized ways a subpoenaed witness can avoid testifying -- the prosecutors can get an "immunity" order guaranteeing that the testimony won't be used against him, at which point he has to testify. So the offer of cooperation credit has to be designed to do something more than just secure whatever testimony the witness would otherwise give if placed under oath.

Second, in negotiating with a potential cooperator, prosecutors have ways of making it very clear what testimony they want to hear. Usually, it's not stated as explicitly as, for example, "we need you to testify that Mr. X knew the consulting agreement was phony." But the delicate dance that actually takes place is just as effective in getting the message across.

The process typically starts with a "proffer" session, a meeting in which the potential cooperator (or her attorney) gives the prosecutor a preview of what her testimony would be. Before this point, the prosecutor has probably signaled what he's interested in -- who the ultimate targets are, and what he would like to charge them with -- so there's already a strong incentive to tailor the proffered testimony to what will be most beneficial. Then, during and after the proffer, the prosecutor can let the cooperator and her attorney know how valuable they think the information is; that is, what type of sentencing reduction it's likely to bring. There is often a message -- sometimes implicit, sometimes explicit -- that the information is helpful, but it would really be great if the cooperator happened to recall certain other things. There may then be follow-up proffer sessions at which, not surprisingly, those additional details emerge.

Lastly, the government ensures that the cooperating witness remains highly motivated to please the prosecutors throughout the cases against the ultimate targets. In the typical case, the cooperator agrees to plead guilty immediately, but to have her sentencing proceeding postponed until after the targets' cases have concluded through trial or otherwise. The prosecutors promise that if the cooperator fulfills the terms of her deal, the government will recommend a reduced sentence for her. They also warn, however, that they will not make this recommendation if they determine that the cooperator has not testified "truthfully." Of course, the cooperator knows what the "truth" is in the prosecutors' eyes.

Would anyone seriously dispute that this practice creates enormous risks that witnesses will adapt their testimony to whatever the prosecutors want to hear? In light of the immense pressure brought to bear -- often, the threat of a draconian prison sentence, coupled with other life-altering consequences -- it's understandable that even the most honest, upstanding witnesses might give in. And these cooperators all have at least two characteristics that would normally prompt us to view them more suspiciously than we would the average person.

First, according to the government, these witnesses are guilty of their own serious felonies. Second, the very act of offering cooperation credit is an acknowledgment that these are witnesses who need special inducements to testify "truthfully." How can we possibly subject such presumptively questionable witnesses to such powerful influences and expect that what we'll get in the end is "the truth, the whole truth, and nothing but the truth"?

Interestingly, some years ago a federal appellate court did the unthinkable and concluded that this longstanding practice violated a federal statute that criminalized "giv[ing], offer[ing] or promis[ing] anything of value" to a witness "for or because of" that witness's testimony.

The government, predictably, was apoplectic. The court quickly reversed course in an "en banc" opinion, in which the full membership of an appellate court reviews a decision by one of its three-member panels. Remarkably, no one seems to have disagreed with the basic principle that in "cooperation" cases prosecutors are, in fact, giving, offering and promising something of immense value to their witnesses for and because of their testimony. The court simply concluded that Congress couldn't possibly have meant to say that prosecutors can't do this -- as it stated with commendable candor, "this particular statute does not exist for the government."

It's hard to decide what's most disturbing -- this and other courts' belief that it would be absurd to apply a please-don't-bribe-witnesses statute to federal prosecutors, or the oft-stated justification that if prosecutors were in fact held to the same standards as all other attorneys, the justice system as we know it would grind to a halt. If that's really the case, perhaps it's the system that's the problem. If the government can't win its cases without purchasing testimony from presumptively unreliable "cooperators" -- in a manner that would get other lawyers criminally charged and disbarred -- is there a point at which we ask whether those cases really ought to be won?

In any event, the "cooperation" system proceeds apace, in the FIFA case as in others. So as details continue to emerge from cooperators, and as guilty pleas and verdicts follow, it's worth asking whether we're comfortable with the inevitably tainted stories that this system encourages.