Are Feds to Blame for Duke’s Silence?

Below, Justin noted the mixed signals coming from Rick Gwin, the Pentagon’s top investigator into the Duke Cunningham case, about Duke’s level of cooperation. I called legal experts and asked — if Cunningham isn’t talking to investigators, as Gwin claims, why not?

If Duke’s staying silent, it’s because prosecutors have already forfeited their only leverage to get him to talk, the experts said. In fact, they’ve given him incentive to hush up.

Prosecutors rushed Duke’s sentencing — and now that he’s in prison, he has little reason to talk to them, the experts told me. Even worse, if Duke tells them anything that implicates him in crimes they didn’t know about, he’s in for a new world of hurt for violating his plea agreement.

“If I were Duke Cunningham, frankly, I wouldn’t be cooperating,” Melanie Sloan, a former federal prosecutor and the Executive Director for Citizens for Responsibility and Ethics in Washington, told me. “They sentenced him too fast — once you’re sentenced, you’re done. There’s no more carrot and stick.” She went on to explain how an investigation with as wide a scope as the Cunningham investigation typically runs: “Generally, your deal is dependent on cooperating, and your sentencing is put off until your cooperation is complete.” Prosecutors should have gotten everything they could from Cunningham long before they sent him off to prison.

Especially telling in this respect is that prosecutors sought the harshest possible sentence for Cunningham – 10 years. In cases where defendants provide a substantial amount of information on other investigation targets, prosecutors typically temper their requested sentence.

It took a remarkably short amount of time for prosecutors to tie up the Cunningham case. The San Diego Union Tribune broke the story on June 12, 2005. By November 28, Duke had pled guilty. He was sentenced to 8 years, 4 months incarceration March 3, 2006. From start to finish, the investigation and prosecution lasted less than 9 months.

“They stopped looking very quickly. They stopped digging,” Sloan said, pointing out that Cunningham had been accepting bribes for years – for at least six years, according to the prosecutors. Since the investigation ran its course so quickly, she doubted that they’d really gone back to explore the breadth of Duke’s corruption.

Jonathan Turley, a professor of law at George Washington University, agreed: “This was not handled in a way that would normally be done for an ongoing investigation.”

“Cunningham’s greed may have been more obvious than other members of Congress, but it’s clear that there is a wider circle of individuals involved in this scandal. The fact is Duke Cunningham became the designated defendant for D.C…. From the beginning, the fix was in on this investigation.”

None of the prosecutors from the U.S. Attorney’s Office in California’s Southern District could be reached for comment.

Today’s news about an investigation into Rep. Jerry Lewis (R-CA) proves Gwin right: this scandal is potentally much bigger than just Cunningham. But if prosecutors are going to press their case against Lewis, Brent Wilkes, Dusty Foggo, and others, it seems they’ll have to do it without Duke’s help. There’s a growing belief that they only have themselves to blame.