Purchasing Evidence Against Whitey

Billy Bulger in While the Music Lasts railed at the government’s ability to buy testimony.   He said about the evidence against Whitey that “all of the evidence has been purchased.” (His emphasis.)  He said people say things about Whitey because it gives them a “get out of jail card.”  He wrote people have been offered, “Inducements more precious than money – release from prison, the waiver of criminal charges. . . .”

Billy pointed out that the American Bar Association’s Model Code of Professional Responsibility states:  “A lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case.”

Billy recognized that prosecutors are exempt from that general rule but suggested it is unfair when other lawyers are barred from doing this.

Billy makes a valid point when he says this.   All the gangsters who will testify against Whitey first had to give a written proffer to the government.  The proffer contains what the gangster says he can bring to the table in the form of evidence.  If the government flies to the bait, negotiations begin.

To clarify things the government agents will meet with the gangster to flesh out his testimony.  The gangster is asked about this and that.  If the gangster can come up with the right answers, that is those that the government feels fit into the facts that it believes, then an auction begins.  The gangster will then demand certain things which the government will try to buy to secure a deal.  The gangster will want to avoid some type punishment, keep some of his ill begotten goods and try to get benefits for his family.

When a deal is finally struck, the gangster becomes part of the government’s team.  He takes his position as one of the rowers who will pull the case along.  He becomes best buddies with some of other rowers, the prosecutors and investigating officers.  We are to believe that he is no longer a bad guy.  He is now one of the good guys proving after all that leopards can change their spots.

There is no doubt this is purchased testimony.

Here’s the problem with all of this.  The gangster knows his testimony is important and the government is relying on it.  The government at this point has lost a great deal of control over the case.  If the government finds the gangster has lied about a certain thing, it will try to pretend it does not know about the lie or that the one lie it caught the gangster in was the only lie he ever told to the government after he decided to cooperate.

In handling this bag of garbage at trial the government faces a dilemma.  It has to convince the jury that he is now testifying truthfully.  What guarantee does a jury have that he is now telling the truth?

It’s then when the gangster is taught to testify about his fear of being charged with perjury.  He’ll tell the jury, “yes, I lied all my life but now I have to tell the truth.  If I don’t then I’ll end up being charged with perjury and I don’t want that to happen.”

That’s the biggest lie of all.  It is a great fiction.  The gangster knows and the government knows if the gangster lies about something critical the last thing the government will do is to charge him with perjury.  It would undermine its whole prosecution of the defendant.

In my book “Don’t Embarrass The Family” I talk about this issue.  I suggest there is a particular obligation on the prosecutor when using a  witness who has secured a great benefit for his testimony to insure he is absolutely honest.  It arises in cross-examination.