On the one hand, the prosecution's option to indict if an informant gives false testimony supplies incentives for honesty under such circumstances. On the other hand, giving full immunity to criminal conspirators might make them feel free to just give the prosecutors whatever they want - specifically, accusations against their investigative target - in order to keep from going to prison.
Those are the questions raised in a New York Times piece today ("Trainer's steroid testing testimony followed deal with prosecutors," Dec. 18) about the informant who's accused Roger Clemens of steroid use, Brian McNamee.
That last observation strikes me as odd, too: US Attorneys are usually pretty tight-fisted with their investigative information. I'm not sure I can think of a similar situation where the Justice Department used an informant proffer to gather evidence for a third party like Major League Baseball. It's one thing to use that authority to pressure witnesses and pursue prosecutions, but surely another to use it merely to embarrass major league ballplayers with uncorroborated allegations?
It was a turning point in the exposure of the use of performance-enhancing drugs in baseball. McNamee went on to tell his story to the former Senator George J. Mitchell and his staff. Ward said the government, in effect, told McNamee, “We are not going to charge you if you cooperate.”
The proffer agreement, to some, appears to add credibility to McNamee’s testimony against Clemens because of the punishment he would face if he lied, several former prosecutors said Monday. Clemens’s lawyer declined comment Monday, but last week said his client was outraged at the accusations against him in the Mitchell report and that McNamee’s deal with the government gave him incentive to lie. ...
A proffer is a written agreement between a person and a prosecutor allowing a person to say what they know about possible illegal activity with the assurance it will not be used against them at trial. The government is free to follow investigative leads. The proffer agreement, colloquially known as a “queen for a day” letter, may lead to a written immunity, cooperation or plea bargain agreement, or it may stop there if the government does not plan to take the case further.Daniel C. Richman, a professor at Columbia University Law School and a former federal prosecutor, said it was extraordinary to see prosecutors compel an individual to cooperate with a private third party like Mitchell.
McNamee denied Clemens' involvement with steroids in numerous interviews with investigators, said the Mitchell report, until he finally changed his testimony in exchange for a promise not to prosecute. As I've written previously, "Was McNamee telling the truth before prosecutors threatened him with prison, or after? One just can't tell from the report." Clemens' attorney maintains that "McNamee’s deal with the government gave him incentive to lie."
In other snitching related news, the informant who accused Michael Vick in dogfighting charges received a prison sentence 1/10 as long as the former Atlanta Falcons football star - 2 months compared to Vick's 23 month sentence. Prosecutors had suggested the informant receive only probation, but a federal judge said "no," declaring “You were as much an abuser of animals as any other defendant in this case.”
The judge's concerns mirror my own about many informant agreements: They often formally tolerate behavior by snitches that's at least as harmful as those whom they testify against. The judge is right: This fellow is as guilty as Michael Vick, perhaps more so, and I'm sure if prosecutors had offered Vick would have been willing to testify against him! But Vick was the target: Prosecutors wanted to make an example of him, so they didn't really care if this guy was punished. That might fulfill certain public relations goals, but it's not a strategy that particularly enhances public safety.
RELATED: See an interview with Ethan Brown about his new book, "Snitch," on AllHipHop.com.