relying on proposition that "no practice is more ingrained in our criminal justice system than the practice of the government calling a witness who is an accessory to the crime for which the defendant is charged and having that witness testify under a plea bargain that promises him a reduced sentence”
How later courts described this case
- relying on proposition that "no practice is more ingrained in our criminal justice system than the practice of the government calling a witness who is an accessory to the crime for which the defendant is charged and having that witness testify under a plea bargain that promises him a reduced sentence”
- noting that at common law in most jurisdictions it is improper to pay occurrence witness any fee for testimony, and that agreements to pay fact witnesses are generally void as contrary to public policy and for lack of consideration
- holding that a witness such as Gibson’s co- conspirator may testify for the prosecution in exchange for a promise of leniency form the government
- holding that including the government within “whoever” would be absurd and would deprive the sovereign of an established prerogative
Written by the judges who cited it.
The opinion
HENRY, Circuit Judge,
concurring.
This difficult case has spawned three excellent opinions. Judge Lucero’s concurrence resolves the case most convincingly for me, and I join that concurrence.
I write briefly to add that this problem may arise again. As the dissent notes, Congress has recently passed legislation, sponsored by Rep. Joe McDade and endorsed by the American Bar Association and the American Corporate Counsel Association, 1 that repeals the Thornburgh memorandum. It di *1303 rects that government attorneys — most of whom are 'licensed in the state in which they practice — be subject to state ethical rules. Thus, the dissent’s suggestions as to other tactics that might be employed may deserve close scrutiny.
Further, I note that although I believe the majority is correct on the tradition argument, I do not see the statute as construed by the dissent as patently absurd. I do see that its operation as construed by the dissent would work what might be called a legal absurdity, in that Congress would have criminalized the general practice. I simply do not believe Congressional intent could have been to criminalize the widespread and common practice of government lawyers.
. See Harvey Berkman, Thornburgh Rule is Nixed, The National Law Journal, Nov. 2, 1998, at A8.