Pubdate: Thu, 14 Jan 1999
Source: San Jose Mercury News (CA)
Copyright: 1999 Mercury Center
Contact:  Eric E. Sterling


PERHAPS you were shocked when you first heard the term ``testilying,'' the
term New York police officers used to describe their routine practice of
lying on the witness stand in drug cases. Sadly, perjury is routinely
practiced in American courts.

Today, perjury is center stage in American political life, as the Senate
begins the impeachment trial of President Clinton.

If any witnesses are heard in this unique trial, the star would be Monica
Lewinsky, who has admitted she committed perjury. Every aspect will deviate
from criminal trials in American courts, with one critical exception.
Routinely in drug cases and other trials, the star witness cuts a deal with
the prosecution. Likewise, Lewinsky, a potential defendant, has cooperated
in exchange for favorable treatment.

Across America, witnesses and prosecutors engage in an awkward dance --
flirting and threatening, hinting and cajoling, offering and countering.
Prosecutors signal what they want to hear; witnesses intimate who they can
finger in their testimony. The juicier the testimony, the better the deal.
Witness freedom is purchased with testimony. Testimony is paid for with
freedom. As in so many cases, until the prosecutors made a deal with her,
Lewinsky, the star witness, wouldn't snitch on the principal target.

Witnesses facing criminal charges usually can't bargain from strength. Most
low-level offenders, in truth, have little to offer prosecutors. The only
exception to a federal mandatory minimum drug sentence is reserved for
defendants who provide ``substantial assistance'' in the prosecution of
others. The prospect of a mandatory sentence of 10 years or more, however,
is often a powerful stimulus to the imagination. In a perversion of justice,
the drug kingpins who have the best information cut the best deals by
turning in their underlings and providing essential assistance to
prosecutors seeking to ``smash'' a drug ring.

In Washington, the House of Representatives hopes to present testimony
before the Senate of an admitted liar to establish that the president is a
perjurer. This is like thousands of drug cases in which an admitted drug
dealer testifies for the prosecution that someone else is a drug dealer, and
earns his freedom in doing so.

Kenneth Starr has been criticized for setting a ``perjury trap,'' in which
he obtained the immunized testimony of Lewinsky before the president
testified under oath. But there is an everyday ``perjury trap'' faced by
drug defendants when witnesses against them buy years off their prison
sentences by testifying falsely so they can be certain to satisfy
prosecutors to whom they are providing ``substantial assistance.''

A rationale of the impeachment trial is that to maintain the integrity of
our system of justice, no one, not even the president, can be held ``above
the law.'' But it must also be true that no one can be held ``below'' the
law by unjust procedures that lead to routine dishonesty and injustice.

Eric E. Sterling, counsel for the House Judiciary Committee from 1979 to
1989, was responsible for drafting the mandatory minimum sentences for drug
cases in 1986. This was written for the Los Angeles Times.

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