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Mueller should not get to decide whether Manafort is lying

Prosecutors call them cooperating witnesses. The rest of the criminal justice system calls them rats, snitches, chivatos, stool pigeons, informants and sapos, just to name a few of the terms. The federal criminal justice system is built on these witnesses. So long as they tell “the truth,” they receive enormous reductions in their sentences. In some cases, sentences for defendants convicted after trial are 500 percent longer than sentences received by those who plead and cooperate with the government. 

So it’s no surprise that trials have dropped from almost 20 percent of all cases in the 1980s to less than 3 percent today (with most all the rest of the cases resolving in a plea). Like the days of Salem witches, even the innocent are racing to plead guilty and to tell the prosecutors what they want to hear in the hopes of avoiding monstrous sentences.

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There are many fundamental problems with such a system. One such issue is demonstrated in the Paul ManafortPaul John ManafortFive takeaways from the bombshell Cohen, Manafort filings Cohen and Manafort pose new problems for President Trump Hannity downplays Cohen, Manafort filings: 'How will America ever recover?' MORE case, where the prosecution team just filed a status report with the court explaining that they have concluded that Manafort is not fulfilling his end of the plea agreement because, they say, he has lied to them during interviews (or as they are called in the system, debriefings). Manafort has said he has answered all of their questions truthfully. This may or may not be true.

But who decides? Strangely, the Mueller team is the decisionmaker in whether Manafort is telling the truth. In the Manafort plea, just as with all other cooperation deals in the federal system, the government gets to decide unilaterally whether to ask for a sentencing reduction based in part on whether they believe Manafort is telling the truth. Manafort cannot himself file a sentencing reduction motion under the sentencing guidelines, and neither can the judge. The government and only the government is charged with evaluating whether Manafort has provided “substantial assistance in the form of truthful information.”

Defendants quickly learn what this really means: Tell the government lawyers what they believe the truth to be or get burned at the stake.

This is what is expected to qualify as providing substantial assistance. The “truthful information” must be the version of events that supports the government’s storyline.

So long as the testimony supports the government’s case, they are happy. Even when cooperating witnesses who parrot government narratives are exposed as liars under oath at trial, prosecutors still file motions to reduce their sentences. In one recent federal trial in Orlando, a judge called out a cooperating witness and dismissed the case against the defendant. The prosecution team still reduced that witness’s sentence because in its view, he told the truth (i.e., he said what the prosecution wanted him to say).

This is just one example of prosecutors’ unchecked power, which has caused the crown jewel of our criminal justice system — the trial — to vanish.

We would be well reminded of Thomas Jefferson’s words that “trial by jury [is] the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution.”

Even if Manafort told the truth, the whole truth and nothing but the truth, his answers won’t be judged by a jury or a judge. The Mueller team will be the judge, jury and executioner. This is not how it should work.

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He previously worked at Williams & Connolly in Washington, D.C., and as an assistant federal public defender in Miami. He graduated magna cum laude from Harvard Law School. Follow him on Twitter @domarkus.