When Chicago District Judge Joan Lefkow concluded that AUSA Rachel Cannon, a prosecutor in Patrick Fitzgerald’s office (the purist of all federal prosecutors), lied to her, the office’s response was that it was “truthful but inaccurate.”

Many ridiculed this response, and indeed it may well deserve such ridicule.  But at the same time, I understand it only too well.  I’ve made that argument too many times to not appreciate its merit.  It’s not that inaccurate testimony can’t also be false, but that courts make determinations that one witness is credible and that a witness who offers conflicting testimony is not every day.  In the simplest form, that reduced the latter to a liar.  Judges deal harshly with liars.

In my experience, the issue arises primarily when witnesses are called for the defense at suppression hearings.  Clients are often outraged by an agents claim of consent to search and vehemently denied that it ever happened.  Or perhaps it’s an allegation that the defendant made an inculpatory statement, when he swears that he said the magic words, I want to speak with my lawyer, and nothing else.

There are only two witnesses to what happened, the agent and the defendant.  One of these two stands accused of a crime.  The other has been taught in agent school how to testify in court, how to provide a narrative of his experience and virtues, how to remain calm under pressure and how he is the last bastion of protection between the heinous criminal and society’s virtuous mothers and daughters.  He knows the secret words that will make the search stick, and his few qualms about speaking them to save society from the bad guys.

A defendant will sit in my office and scream, “How can he lie like that?”  Well, it’s really quite easy.  Because he’s lying for the greater good, at least as he sees it, he suffers no moral dilemma in tailoring his testimony to meet the silly rules courts impose on police.  And because he’s been trained to do so.  He’s just plain good at it.

Calmly, I explain that there’s no red light that goes off when a witness is lying.  There’s no magic way for a judge to tell that the agent, the person whose job it is to stand between criminals and good citizens, is just a bald-faced lying sack of excrement.  The odds are fairly good that the agent is telling the truth, or at least the story that’s closest to the truth, and judges tend to go with the odds since they have no other way to decide credibility.

If you want to challenge the truthfulness of the testimony, there’s only one way to do it.  Put a witness on the stand to tell the truth, to challenge the testimony of the agent and say what really happened.  Sometimes, though rarely, there’s an independent witness who was present and can testify without the taint of being the defendant, the person with the most to gain from lying. 

But even when an independent witness exists, they are often reluctant to testify for fear of police retaliation, or have skeletons in their closets with which they’ll be beaten to a pulp, or just don’t make good witnesses.  It’s really quite hard to provide credible testimony, to answer questions under pressure. Few people do it well, despite hours of preparation and practice, and a bad witness can prove disastrous on the stand.  One mistaken answer, born of nothing more than confusion and fear, can sink a defense.

There is a witness of last resort, however.  He’s the defendant, the last person you want to put on the stand and your only hope.  the defendant, by definition, is the least credible person in the room.  Presumed guilty, despite all rhetoric to the contrary, he’s tainted from the very first word.  But in a world of limited, and usually bad, choices, it’s the defendant or nothing.

Cut to the decision: “I find the agent credible, and find that the testimony given by the defendant was false and self-serving. Motion denied.”

Like it or not, this will be the outcome more often than not.  It’s just the odds, even when the defendant’s testimony is picture perfect (itself a rare occurrence).  What this means in a federal case is that the government will argue at sentence that the defendant should receive a two point enhancement for obstruction of justice.  Even if the judge is disinclined to abide the guidelines, there remains the issue of dealing with defendant who took the chance, testified on his own behalf, and told a story that directly conflicted with the agent.  Someone was lying, right?

The argument at sentence must be made, and should be made.  One position is that the defendant should not be penalized for exercising his constitutional right to testify on his own behalf.  It’s invariably a loser, since there’s no right to testify falsely.  It’s my practice to argue that the finding of credibility by the court is not a conclusion that the defendant lied, but a conclusion that the government agent was a more credible witness than the defendant.  Having found for the government, and it being within the court’s province to find fact, that fact thereafter being legally conclusive, it’s too late to contend that the facts are other than what the court says they are.

That doesn’t mean, however, that the judge is so certain of his decision, so staunch in his belief, that he is simultaneously certain that the defendant lied to his face.  If he believes that the defendant lied, he will exact a price.  But if he believes that there is room for misunderstanding, or even a crack in the veneer of the government’s case, there is an opportunity to argue that the defendant did not lie: he was being truthful, though inaccurate.  And only inaccurate because the court found otherwise.

My experience is that many judges, despite the certainty with which they pronounce their decisions, aren’t so foolish as to believe that they possess the power to tell which witness has told the truth.  Some even realize, in their hearts, that agents gild the lily, tailor the testimony, testily for the greater good.  It doesn’t make the defendant innocent, for agents can frame the guilty as well as the innocent, but it gives the judge pause to remember that his judgment may not be more perfect than others.

Granted, it’s hardly as satisfying to argue that the testimony of a defendant, which you believe to come closer to the truth than that of the agent, was truthful but inaccurate rather than the only credible recitation of what transpired.  The impulse to insist that the agents manufactured a story to overcome the defendant’s constitutional rights is strong, and we’re wired to persist in positions we believe to be true.

The irony of arguing against the obstruction of justice enhancement, as viewed from outside the office of Patrick Fitzgerald, is that it may truly present an instance of deliberate deception, since we maintain the belief that the agent lied, the defendant told the truth and the court was dead wrong in its decision. 

This leads me to be circumspect in my criticism of Rachel Cannon, who may well have known that she was lying to Judge Lefkow, or may simply have believed that she was doing what she had to do.  It’s doesn’t make it better, but it makes it more understandable.