H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Federal Prosecutors Punished for NOT Investigating Veracity of Snitch Witnesses

The Seventh Circuit this week admonished the United States Attorney’s office for failing to investigate the truthfullness of a “cooperating witness” in the face of obvious false testimony.

The Seventh Circuit on June 17 decided a drug case that will have application to ALL criminal cases, including white-collar cases.

In the appellate decison of United States v. Freeman, 09-cr-4043, 2011 WL 2417091 (7th Cir., June 17, 2011), the Seventh Circuit granted a new trial on the grounds that the Federal prosecutors presented testimony of a key cooperating witness on the stand who they knew or at least should have known was lying.

The criminal defense lawyer was on target when he sent the prosecutors a letter detailing his concerns after reading the grand jur testimony challenging key aspects of the cooperating witnesses participation in the actual conspiracy charged in the case.

The US Attorney’s office did not investigate the challenges made by the defense lawyer who later testified falsely. Unbelievbly the witness was in JAIL when the witness claimed to be participating in the underlying conspiracy.

The Court Said:

“[T]he governing principle is simply that the prosecutor may not knowingly use false testimony. This includes “half-truths” and vague statements that could be true in a limited, literal sense but give a false impression to the jury.”

H. Michael’s Take

This caas imposes a clear duty on the part of federal prosecutors to investigate plausible allegations that a government witness’s expected testimony was false.

“[I]t is obvious that when the government received the letter from [the defendant’s] attorney, it knew there were problems with [the witness’s] testimony – problems it should have cleared up well before [the witness] was allowed to testify . . . .

[W]hen the government learns that part of its case may be inaccurate, it must investigate. It cannot simply ignore evidence that its witness is lying. Here, the government abdicated its responsibility by failing to investigate . . . .(Citations omitted.)”

Federal prosecutors swollow whole the stories told by “helpful” cooperating witnesses,

These witnesses often tell the prosecutors whatever they want to hear based on what is needed in the target’s case.

These witnesses often are the first to “flip.” Agreeing to testify immediatley without these are the witnesses whose “stories” should be checked out before deals are made.

Prosecutors too often ignore massive evidence of the obvious lies and inconsistencies in the proferred testimony.

Criminal defense attorneys should ALWAYS disclose – even if it is tactically questionable – mistakes and inconsistencies in the testimony of cooperating witnesses. If they make their record prior to trial – giving the prosecutor an opportunity to invesitgate these allegations — and there is no good faith investigation that follows up — they have “protected the record’ for appeal should thse lawyers lose the case at trial.