With their pursuit of investor Steven A. Cohen, federal prosecutors in New York have brought the government’s use of cooperating witnesses into the public spotlight. Especially after my own experience with cooperating witnesses, I find it quite odd that most of the commentary presumes that cooperators tell “the whole truth and nothing but the truth.”
Recently, New York Times business columnist James Stewart wrote, “Government prosecutors, along with the judges who sentence those convicted, have created powerful inducements to cooperate.”
Think about that for a moment. Why is a supposedly independent arbiter for justice aligned with the prosecution? Don’t you think that might “induce” a scared witness to sing the prosecutor’s tune, no matter the real truth?
Stewart goes on to highlight Judge Jed S. Rakoff’s January 2013 sentencing of Wesley Wang, who worked for Cohen’s company, as an example of the system at work. Wang, whom a Times blog profiled as a man with an “unremarkable career,” cooperated with authorities. For this, the admitted criminal, motivated to do and say anything under the government’s lash, was rewarded with no jail time. Therein lies the issue.
If you're going to tell "the whole truth," do you need to be coached on what to leave out?
Judge Rakoff, while explaining his sentence, noted international criticism. “Many countries of the world look with disfavor upon the American user of cooperators, especially if that cooperation results in no jail or a very significant lesser sentence.”
Rakoff defended his treatment of Wang, saying prosecutors “could not achieve the marvelous successes they’ve had in sophisticated crimes, like insider trading, without asking judges to give a very substantial benefit to cooperators.” But the potential for injustice is obvious.
I know of what I speak. I resigned as president and chief operating officer of Monster Worldwide in 2002. In 2009, I was tried before Judge Rakoff in a case that would no doubt fall under his definition of a “sophisticated crime.” The charges related to non-cash accounting, from 1996 to 2002, under meaningless and impossibly vague financial standards that were replaced in 2005. The case was built on two cooperating witnesses who somehow managed to remember tiny details, forget major issues, and avoid jail time or (in one case) even indictment.
I was convicted.
The potential for injustice is obvious.
Then, nine months after I finished my time at Morgantown federal prison, one of the government’s key witnesses in my case approached me. We met for lunch in a Manhattan restaurant.
The witness described the government’s intimidation tactics. Some were almost comical: broken chairs to sit in; investigators flashing their holstered guns; and long, miserable hours of “good cop, bad cop” routines, with few water or bathroom breaks.
Other techniques were more serious. Prosecutors played the innuendo game, suggesting an indictment if the witness did not cooperate. They met with the witness on at least fifteen separate occasions, with the sessions revolving around what to say, how to say it, and what to omit.
If you’re going to tell “the whole truth,” do you need to be coached on what to leave out?
During our lunch, the witness recalled a key piece of evidence that never found its way into my trial, evidence that might have generated reasonable doubt. The witness also recalled a particular event around my late secretary’s exit from Monster, one that would have been helpful to my defense.
“Why didn’t you say something?” I asked my lunch companion.
The teary reply: “I didn’t lie. It’s how you answer the questions you’re asked.”
The alliance among prosecutors, the people they threaten, and the presiding judges is dangerous. Prosecutors get to parlay their “marvelous successes” into seven-figure partnerships at major law firms, promotions within the Department of Justice, or platforms to run for office. Cooperating witnesses get to leave prison earlier, or stay out altogether. And scrapbooking judges get to wield power, which is the narcotic of public service in the same way that money is the narcotic of Wall Street. But browbeating witnesses—the stick—while offering them freedom from indictment or jail time—the carrot—distorts American justice.
The integrity of the legal system requires that prosecutors and judges be committed to finding the truth, and that witnesses be free to tell the truth, with no incentives to lie or mislead. Using coerced and bribed witnesses, with a willing judge as paymaster, misses that mark.
A legal system built on singing for one’s supper risks encouraging deception—and sending innocent men and women to prison.