Interview J. Don Foster

J. Don Foster
U.S. Attorney for the Southern District of Alabama, where Clarence Aaron was tried.

As far as snitches go, if they're helping to solve this terrible drug problem that we have in this country, then we will continue to use them, as long as they're truthful. What is your position?

I'm the U.S. Attorney for the Southern District of Alabama, [which] includes 13 counties from Mobile on the Gulf Coast to around Tuscaloosa on the north end.

Why are there so many federal drug cases in this district?

Well, the drug policy in the past has been very aggressive. I mean, we have been after drug users and drug distributors, and the big fish primarily, for a long time. It's been traditional in this office, it's been historical in this office. ...

Who started it?

I would say probably it goes back to the Sessions tenure, who's now a United States senator. He was in the office for 12 years. ...

He was aggressive?

Yes, he is. He was and he is. And so am I. ...

Why more cases here?

As I said, historically there's been an aggressive drug prosecution effort in this district. It comes from all the federal agencies as well as the U.S. Attorney's office. And historically we've done a lot of drug cases. Now if you want to explain why there are more in Mobile than perhaps other places, you can look at the fact that we're a transportation crossroads, for one thing. We've got an interstate going north and south, I-65. We got one going east and west, I-10. So you know we've got a lot of drug traffic, coming from the west primarily, but some coming from the south, out of Florida, as well. And they come through Mobile and they get caught here. So a lot of the defendants that you'll see in the Mobile numbers are not from Mobile. They're from Miami, they're from Houston, they're from California. They might be from anywhere, but they get caught here or they are involved in conspiracies that get caught here. ...

You get a lot of small fish in these cases.

That's not true. We get as many as we can of all varieties. I mean, you like to get the big fish ... but you can't always have them. And so you get as much as you can. And that's what we do. We try to go up the ladder if we can, starting with the little fish and going up the ladder to the big fish, but sometimes you've got the big fish and you need to come down the ladder. So it just works however it fits for that particular case. ...

Everyone is given an opportunity to cooperate. Everyone at the outset is given an opportunity to help themselves as well as us in our efforts to fight the drug wars. And if they don't cooperate, which is what happens a lot of times, then they wind up going to trial and most of the time they get convicted, and then they get a longer sentence than they would if they had cooperated with us. That goes for all levels, and primarily the lower levels are the ones that need to cooperate fully and substantially at the outset. But a lot of times they don't think they're going to get convicted, or there may be other reasons that they just don't want to talk, and they won't do it. And then they get convicted.

Are they being punished for not talking?

Well, I don't know that you call it punished for not talking. Their punishment is because of the crime they committed. By helping us discover who other criminals are and help us to prove cases against known and unknown criminals, they get a reward in effect for doing that. They have an incentive to help us, because it helps them too.

How do you know that they are testifying truthfully?

We try to evaluate based on experience and based on careful examination, based on corroboration. [We want] to be sure ourselves before we put that witness on that we've got a truthful witness. We don't want one who's not. ... And ultimately what the test is, is the jury. They [have] to testify before a jury and the jury of 12 people is going to determine whether they're telling the truth. And that's the way it should be.

Does the jury know that they are benefiting from their testimony?

You can be sure that defense attorneys remind juries of that every chance they get. The juries are bombarded with the fact that these people are criminals themselves. And that they may be trying to help themselves out by testifying. But it's hard to make up a story that fools twelve people. ...

Aren't the witnesses sometimes held in the same cell, given a chance to compare notes and synchronize their stories?

... If the judge tells them not to talk and they talk, they're in violation of the judge's order, and the judge does tell them not to talk with each other, does tell them not to tell each other what they have testified to. ...

You count on this admonition?

I think that's a very important admonition. I think federal judges make an impact on witnesses. And witnesses try to do the right thing. And they try to obey the judge's orders, I believe. ...

I would think that inside court they have an incentive to tell the truth because if they don't, if they're under a deal and they don't tell the truth, they lose their deal. And secondly, they're guilty of perjury. ... I think they've got to tell the truth, more so in court. It's easy to lie outside of court. ...

But if they are facing a life sentence anyway, would they really be threatened by a perjury charge?

The protection against that is that every [defense] lawyer ... is going to tell the jury that you can't rely on this person, they're lying, they've got an incentive to lie and you shouldn't believe them. ... But when you hear somebody's story, most of us can pick up when people are lying, when their stories don't jive, you can pick it up. Even somebody who's facing a serious penalty, if they lie you can pick it up.

... Now sometimes people make mistakes, sometimes people will make misstatements. And sometimes they're not lying, they just don't really know what they're talking about. ... But again, all of this is in the context of a case ... and if it doesn't make sense and if the person that is testifying does not come across as credible, the jury should and would in most cases, if not all cases, disregard that testimony. ...

Tell me about the Clarence Aaron case.

That case was tried by Deborah Griffin, I believe. She's one of the fairest prosecutors in this country, one of the best prosecutors in this country, somebody who would always try to work with a defendant. And she did try to work with Aaron. He would not cooperate. He thought he was going to win. And he was given every opportunity to help himself early on and he didn't want to do it. He thought he was going to go in there and snow the jury. And he lost his bid.

But if the point is to combat the serious drug problem in our country, does it really make sense to put someone away for life who was only involved in a minor way in the main transaction?

Do you understand that he was involved in a case where the amount of drugs was quite large? That he arranged for the purchase of some nine kilograms of cocaine or crack, I don't remember which. ... Now a $200,000 buy and he was the go-between for that. ... Can you imagine how much damage nine kilograms of cocaine or [cocaine ] converted to crack can do in a community? Nine kilograms.

But there was no nine kilograms discovered, was there?

Well, the witnesses said they delivered nine kilograms of cocaine.

You believed that?

The jury did. The jury was convinced. ... There was absolutely no question that Aaron was guilty. He was absolutely as guilty as sin. And the jury found him guilty.

Of what?

... That he helped make a $200,000 dollar buy.

Who said that?

I'm not sure which witness said, but it was in the case in chief.

But he was convicted only on the word of witnesses?

He had every chance in the world to cooperate and he wouldn't do it. He thought he was bulletproof. He thought he could snow the jury, and he couldn't do that. I mean, he could have helped himself so much and I wish he had. ... I have never seen the man, I was not at his trial, that was of course before my watch. But I understand that he's a nice-looking man. Very athletic. He was a football player at some place in Louisiana. And very nice appearance and all of that. When you see somebody like that and you realize they're going off for life, you can't help but just feel sorry for them. But what you don't see are the hundreds of and even thousands of victims. And that's problem that I've had in reconciling drug sentences, is that I see the perpetrator and a lot of times they're young and black and they look nice and you wonder how they could do this.

What you don't see is the victims that they have harmed so badly, particularly in the black community, which is where most of the victims seem to be. And if you could see what happens [to] a child or teenager who's on crack and how their lives are ruined ... if you could find out how many convenient stores are robbed, how many carjackings there were, how many murders there were, how many broken homes there were, how many crimes that were committed as a result of nine kilos of crack cocaine. And if you could have some of those victims come in and testify that their child was hooked on crack cocaine because of this nine kilograms that was distributed ...

How was he charged with nine kilograms if no drugs were discovered?

There was [testimony] that he got $200,000 dollars and he bought nine kilograms of cocaine, which was later converted into crack cocaine. And I think there was testimony to the effect that he had knowledge or should have had knowledge of what they were doing with it.

Testimony by whom? Co-conspirators?

I would imagine, but I'm not sure. [I wasn't at the trial.]

He could have saved himself. I mean how can I say it, I wish he had. I wish he had, but he didn't. And the tendency to feel sorry for him is in relation to these other people that did cooperate and that did help themselves and got less. And even though they were perhaps guiltier or more culpable they got less because they helped solve the case. They helped to bring everybody to justice and the one person or two, I think there were two that went to trial in that case, that didn't suffered the results or the consequences of the arrogance of thinking that you're going to beat this. That I'm too good to take a deal. ...

[Aaron] could have probably given us some people in Houston, in Baton Rouge and in Mobile. He wouldn't do it. He didn't do it. My understanding is that Deborah tried earnestly and very sincerely and very diligently to get him to cooperate so that he could get a better deal. He would not cooperate. He would not help. She was convinced that he knew a lot more than he would say and he just simply denied it because he thought he was going to get off.

In general, the prosecution has a lot of power in choosing which cases to bring.

The prosecution has an obligation certainly to bring cases that are worthy of prosecution, and that's why we have a grand jury. And you take these cases to the grand jury and the grand jury decides whether there's probable cause to indict this person. And believe me, we don't want to indict anybody who's innocent. Now probable cause is not proof beyond a reasonable doubt. And the standard in the grand jury is not proof beyond a reasonable doubt. It's whether there's probable cause that a crime has been committed. So I think we have an obligation to screen cases carefully and make sure we have solid evidence and truthful witnesses and we do the best we can to do that. ...

In essence, cooperating is snitching.

I guess some people would call it that.

That's not very honorable, is it?

Well, I don't know among who it's not honorable. What group would hold you in dishonor besides maybe a criminal element for snitching? ... I don't have a problem with somebody snitching if they're bringing a criminal to justice that's going to do some harm to a community. I don't have any problem with that at all. Who would, except other criminals? Who would care?

Do jurors know about mandatory minimum sentences?

The sentencing is not up to them. ... It's not relevant to the case but sometimes I think they probably do know. We certainly don't want the jury to have any evidence of sentencing. It's not relevant. Sometimes people try to get that in. ...

One of the jurors from the Aaron case that we talked to was shocked at the sentence Aaron received.

When you isolate jurors after a trial is over, it's unfair to them because they don't have the support network that they had in that jury room. And I think they try to tell you what you want to hear a lot of times, too. ...

He thought Clarence was guilty, but was stunned at the life sentence.

So there's not a problem with guilt here, the problem is with the sentence.

How do you feel about mandatory minimums?

I think the mandatory minimums are fine. I don't have a problem with the mandatory minimums, and of course as you know the '94 crime bill had these safety valve provisions added so that if you meet the criteria of the safety valve, then the mandatory minimum does not apply. ...

Are we winning the war on drugs?

... I think we are winning in the sense that we're making it a lot tougher. The alternative is certainly no good, you can't just let it go. You can't not prosecute people who violate the Congress' laws. So we are winning it in the sense that we are catching an awful lot of people who are distributing drugs in this country, purveying misery to hundreds and hundreds, even thousands and thousands of people. ...

How do you feel about snitches?

If the snitch is telling the truth I'm happy to use that testimony. The main criteria is that you've got to believe that person is telling the truth. As far as snitches go, if they're helping to solve this terrible drug problem that we have in this country, then we will continue to use them, as long as they're truthful. ... You have to use that testimony, it's a very critical type of testimony in all the types of prosecutions usually. And if you take that away or if you try to rationalize some way to not do it, then you have deprived yourself of a very valuable tool of prosecution. ... It's absolutely necessary in the war on drugs. We've got to have it. There are safeguards to protect defendants from liars.

Which are?

The jury and their defense attorneys and the judge, who can argue strenuously, and always do, to the jury that these people are unreliable ... . And you know you have to assume that the people sitting on this jury ... have common sense just like you and I do. ... I think having heard that person and having heard that argument that that defense lawyer's going to make, each juror has to make up his or her mind, whether that person has been lying. And if so, they're going to discount that testimony. ...

Does the fact that prosecutors can offer defendants freedom in exchange for testifying create an uneven playing field, since the defense doesn't have an analogous power?

I don't think the playing field is uneven at all. We have a standard of proof beyond a reasonable doubt. It's a very high standard of proof. We have to put our case on first. And we have to prove that case. And we're doing it under the rules and regulations and laws of this country that Congress has enacted. ... And I think that good defense lawyers play by the rules too. And they don't have a problem with that. They get discovery. They find out what's going to be presented at trial and they have a chance to prepare. They have a chance to cross-examine. They have a chance to argue before the judge and argue before the jury. ...

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