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As dog-fighting defendant and football quarterback Michael Vick is learning, scrambling away from the feds becomes even tougher when they play “Let’s Make A Deal” with a co-defendant who agrees to testify as a prosecution witness. The cooperating witness’s art of “turning state’s evidence,” also highlighted recently by lobbyist Jack Abramoff, the cooperator who keeps them sleepless in Washington, has a tradition-rich history that may be worth a look. 1692: Although no one used the term “cooperating witness” or even “snitch” in pre-revolutionary times, the accused witch Tituba provided testimony that helped launch the Salem witch trials, presenting key elements that could be instructive for future generations of cooperators. First, there was the insider’s view: She offered an analysis from the inside of the broad-ranging “witchcraft conspiracy.” Second came acknowledgment and remorse: She acknowledged her own guilt � having fessed up to the preparation of “witch cake” � as well as her own remorse � she had wanted to come clean sooner, but was blocked by supernatural forces. And finally, there was “punishment-lite”: She got off very lightly with some jail time, especially compared with those against whom she testified. 1865: Witness Henry Van Steinacker, in prison for desertion, was a bit player as a witness during the Lincoln assassination trial. But he set a blueprint for future cooperation strategies by just happening to recall a conversation two years earlier that could not be refuted by others and that nicely supported the government’s conspiracy theory. And fulfilling the dream of cooperators throughout the ages, he secured a “get out of jail free” card for himself shortly after the defendants were convicted. 1934: Proving that cooperation can be a many splendored thing, Bonnie and Clyde gang member Henry Methvin won himself a pardon from Texas and a death penalty commutation from Oklahoma without even having to testify against his accomplices. Evidently, he provided a creative form of “substantial assistance” by setting up Bonnie and Clyde’s encounter with the authorities, one which avoided the need for a protracted, expensive trial through the delivery of 167 bullets. Defendants’ right to know 1972: The U.S. Supreme Court held in Giglio v. U.S. that defendants should be informed whenever a cooperating witness peddles testimony in exchange for leniency and becomes a prosecution witness. 1973: Witness cooperation captivated a nation with White House Counsel John Dean’s riveting Watergate testimony that led to a president’s resignation and a series of high-level convictions. While pleading guilty to obstruction of justice, Dean had his sentence reduced to time served and he later emerged as a successful author and lecturer. 1992: Although implicated in as many as 19 murders, cooperator Sammy “the Bull” Gravano helped to convict the “Teflon Don,” John Gotti. While Gotti has since died in jail, Gravano, known by some as Sammy “the Rat,” reportedly went “legit” for a while, with a makeover that offered hope for rogues everywhere so long as they can make the government an offer it can’t refuse. Years later, though, he got a 20-year sentence for drug trafficking due to, ironically enough, a trusted subordinate who cooperated with the feds. 1998: In one of the less elegant episodes in the history of cooperation, Monica Lewinsky secured immunity in exchange for cooperating against the president of the United States. She also gained plenty of fame, an ability to market her own line of handbags and a frequent role in unseemly humor. This time the president survived the cooperator’s testimony, even retaining a high level of popularity that continues to the present day. 2004: Although the Martha Stewart defense team had hoped to portray cooperator Douglas Faneuil as a lying rat trying to save his own skin, he came off as a Matthew Broderick boy next door caught in a collision between master manipulators. In compelling testimony that offered the insider’s view along with acknowledgment and remorse, Faneuil’s sweetheart deal gained him punishment-lite: a misdemeanor conviction, no jail time and at least 15 minutes of fame. 2006: Andrew Fastow, the former chief financial officer who cooked the books for Enron’s billions in fraud, combined repentance and more than 1,000 hours of assistance to the federal prosecutors who won convictions against his ex-chief executive officers, Jeffrey Skilling and Kenneth Lay. While Lay died after the trial, and Skilling received a sentence of more than 24 years, Fastow’s intimate knowledge of sleazy transactions, including many he orchestrated, made him one of the government’s top stars and brought his prison time down to six years. 2006-07: Abramoff pleaded guilty, leading to, among others, convictions of former Representative Robert Ney, R-Ohio, and more recently Steve Griles, former Interior Department deputy secretary. The phones may still be ringing in the offices of Washington defense lawyers while local sales of Pepto-Bismol have been skyrocketing. Kendall Coffey is a partner at Miami-based Coffey Burlington. He served the as U.S. attorney for the Southern District of Florida from 1993 to 1996.

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