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Those unusual fact-finding proceedings produced the bizarre testimony of Rose Mary Woods, Nixon's longtime personal secretary. She said she had inadvertently kept her left foot on the pedal of a tape recorder while stretching awkwardly behind her to answer a telephone call, at the same time mistakenly pushing the "record" button on the machine —and thereby erasing perhaps five minutes (but not 18) of the taped conversation. Asked in Perry Mason-style by Jill Wine Volner, an Assistant Special Prosecutor, to re-enact this, Miss Woods reached for the imaginary phone—and lifted her left foot. Sirica ordered all the tapes to be examined by a panel of technical experts for "any evidence of tampering."
While the technicians continued their studies—an undertaking Sirica described as potentially "most important and conclusive"—he and his young law clerk, Todd Christofferson, listened to the tapes through headphones in a jury room. Sirica upheld claims of Executive privilege or irrelevance on all or parts of three tapes, turning five over to the new Special Prosecutor, Leon Jaworski, and the grand jury. Although constricted, the tapes still were expected to be helpful in determining who had been more truthful, Nixon or Dean.
Convinced that legal processes were well in motion to get at Watergate truths, Sirica sentenced the long-jailed burglars to relatively light terms; the minimums ranged from one year to 30 months, much of the time already served. Said Sirica: "I've given you the lowest minimum I thought justified."
The Argument Over Sirica's Tactics and Conduct
Despite that outcome, Sirica has been severely criticized by some legal authorities for using the provisional-sentencing procedure as a device to get the defendants to cooperate with investigators. "We must be concerned about a federal judge —no matter how worthy his motives or how much we may applaud his results—using the criminal-sentencing process as a means and tool for further criminal investigation of others," contends Chesterfield Smith, president of the American Bar Association. The association's president-elect, James Fellers of Oklahoma City, much admires Sirica and his Watergate role but likens the sentencing tactic to "the torture rack and the Spanish Inquisition." Argues Law Dean Monroe Freedman of Hofstra University: "Sirica deserves to be censured for becoming the prosecutor himself." The University of Chicago's Law Professor Philip Kurland considers the harsh original sentences "a form of extortion."
Sirica defends his action on grounds that no one seriously expected those severe sentences to be made final and that the law makes it mandatory that any provisional sentence must be the maximum possible; he did not have discretion to make it lower. Moreover, it could be argued that Sirica's efforts to determine the true motives and origins of the crime were relevant to his decision on how severely finally to punish the defendants. Yet it is also