Witness Protection and Immunity Law:

1. Witness Protection and Immunity Law: The American Experience

2. Immunity • Granted by prosecutors, with judicial approval, in return for courtroom testimony. • Past-tense orientation • In exchange: • Charges are dropped • Sentence reduced • Sentence nulled/set aside (but conviction still stands) • Conviction overturned • No Rico civil liability • Retain income earned in their criminal enterprises • Pay no taxes on tainted/illegally obtained income

3. Immunity Dynamics • Options - talk or go to jail • If granted immunity, can be forced to testify • Face contempt charges if don’t testify • If give false testimony on the stand, prosecuted for perjury

4. Two Types of Immunity Use immunity – • freedom from prosecution only for the crimes the individual testifies about, BUT • does not bar prosecution for the crime of inquiry if evidence is obtained wholly independently • Still civilly liable (victim, RICO) • IRS can go after you for back taxes on illegally obtained income • mob is certainly going to look for revenge • difficult to testify in court

5. Two Types of Immunity Transactional immunity – • cannot be prosecuted for crimes referenced in the compelled testimony (blanket immunity) • can be prosecuted for crimes not referenced or not related to the crimes testified to in court • deal can be cut to remove civilly liable (victim, RICO) • deal can be cut to remove IRS tax liability on illegally obtained income • If no deal cut, civilly liable (victim, RICO, IRS) • mob is certainly going to look for revenge • difficult to testify in court

6. Question Can immunity be granted in one jurisdiction and the individual subsequently prosecuted for those same crimes in another? No – no state nor the federal government can prosecute once immunity has been granted.

7. Ethical and Pragmatic Problems • Who is to receive immunity • Terms and Conditions • Standardization and Equity Issues • Transparency Concerns • Veracity/Hypocrisy Issues • Testilying

8. InformantsHow does this differ from immunity: • Present and future tense (immunity is past tense) • Informal (immunity is formal) • Tone difference • immunity has a more positive tone, do this and we will do good things for you • informants is generally more negative, if you don’t do this we will make it very hard on you (blackmail really) • Money • no money in immunity deals • LOTS of money offered in the informant arena (a more positive return exception)

9. Problems • Who is to receive immunity • Terms and Conditions • Standardization and Equity Issues • Transparency Concerns • Veracity/Hypocrisy Issues • Testilying

10. Questions Should informants benefit by giving info to the police? • It’s a misprison not to report a crime. • Informing the police of crimes is your civic duty, and we are going to pay people to adhere to the law? • If we don’t use/pay informants, how will we get needed inside information? • Should we pay informants, and if so how much? • Should we establish a transparent, rational payment standard? • Should we allow informants to have the past charges dropped/reduced? • Should we allow informants to also enter into advance immunity deals (called prospective immunity); give them in essence a blank check to do as they want just because they agree to do their civic duty?

11. Thief Taker System Parallel By using informants and granting immunity, we are returning to the old English Thief Taker model with all its problems – using liars and thieves to convict liars and thieves, and we thank the liars and thieves by: • Not holding them accountable for their past misdeeds (immunity) • Not prosecuting them for future misbehaviors (prospective immunity) • Paying them handsomely for their deceitful efforts Its literally a deal with the devil

12. Historical v. Prospective Immunity • Historical immunity – granted immunity for past-tense activities • Prospective immunity – granted to informants who are sent back to the streets and told to buy more drugs, purchase more stolen property, even murder. Prospective immunity tends to be quite informal and informant illegal activities unfounded if they are not too egregious and if key players are convicted.

13. Federal Witness Protection Program Some states have a witness protection program, but it is basically a federal program, establish in 1970 The U.S. Marshal Service provides for relocation and protection of federal witnesses (or potential witnesses) U.S. Bureau of Prisons protects incarcerated witnesses Undertaken as a tool to fight organized crime Witnesses, and often their families, are protected, relocated and given new identities Housing, medical care, job training and employment can also be provided as well as subsistence living expense funding

14. Concerns • Justice Department loses interest after testimony is given • Deceive prospective employers • Myriad of legal and financial issues: • How to pay off debts • How to receive or pay child support/alimony • How to get insurance (car, life, health) • How to obtain a bank loan • Personal tax-filing issues • Child visitation issues

15. Conclusions • Despite the concerns, the program has worked – organized crime syndicates have been taken out • Are the ends worth the means; is it acceptable for the state to become an organized criminal enterprise itself? • Doolittle Report vs. Constitution • See Liberty v. Order

16. Racketeering and Corruption Organizations (RICO) Those fundamentally involved in/had a primary participation in the operation and management of a criminal enterprise, are subject to RICO sanctions. • Enhanced criminal penalties – up to triple the statutory maximum penalties for their offenses • Forfeiture of tainted assets – assets obtained from or used in the criminal enterprise are at risk • Significant civil liability – those harmed (governmental entities, businesses, individuals) can collect triple damages for the harm sustained (ala civil recklessness – compensatory plus punitive)

17. RICO Case Law • U.S. v James Daniel Good: civil forfeitures under RICO are not automatic; they require a separate civil proceeding • Reves v Ernst and Young: liability under RICO requires some fundamental involvement in/primary participation in the operation and management of the criminal enterprise • U.S. v 92 Buena Vista Avenue: assets forfeited under RICO are limited to those that were gained from and/or used in the criminal enterprise; tainted assets

18. RICO Today • RICO has been successfully used to break up organizedcrime syndicates, respond to white collar frauds and illegal corporate practices (ie., follow the money). • Many prosecutors are opting to regularly go down the RICO civil forfeiture route because: • it is easier than moving in the criminal court setting • sanctions are still forthcoming (and many view being hit in pocketbook as a greater sanction) • governments keep the seized assets (this has become a driving factor, for RICO forfeitures are a major government revenue source, a mainstay of many current governments budgets)