Lawyer Being Prosecuted for Suborning Perjury:
Often a hard crime to prove, but not here; according to TriCities.com,
In the days before [his client's] appearance in court, [attorney Scott] Pratt is accused of sending two emails advising his client . . . of what she should say on the witness stand.
One email says in part: "they won't have anyone there to testify how much you had to drink. You won't be charged with perjury. I've never seen them charge anyone with perjury, and everybody lies in criminal cases, including the cops. If you want to tell the truth, then we'll just plead guilty and you can get your jail time over with."
Thanks to Tom McKenna (CrimLaw) for the pointer.
And no, they didn't last long on the job. Don't know what the temp agency did with them afterwards (and frankly don't care).
I have worked with my share of platinum-resume types who have no common sense and no judgment.
Sure, suborning perjury in writing is incredibly dumb. But is it much less dumb than urging someone to lie, when you are (a) talking on the phone and (b) running for President and you know that the likelihood of being taped and outed in the tabloids should be high? Didn't Bill "Genius" Clinton tell one of his Arkansas conquests that you can just deny what happened, and deny that you talked to me? And wasn't his ham-handed attempt to shape Lewinsky's testimony also pretty much close to the line, if not over it, on suborning perjury?
I don't mean to turn this into a Clinton argument generally, or to re-open the specific "but was it ACTUALLY perjury" debate. Take the most charitable reading in his favor, and assume he was a victim of a terrible wrong, and all that. But still, was it not dumb beyond belief to encourage that many people to join the web of lies? That alone should clinch that supposedly "smart" people do things that are darn dumb. Some may only do so in more desperate circumstances, and some may do it to routinely cover up affairs or gambling or whatever, and some may do it every day to get their DUI clients off. But they do it just the same.
my oh my.
As far as the arrogance -- a narcissist figures he is above the law anyway. And he's probably done it for some time and gotten away with it.
Once, in government work, an official who was going to testify before a Congressional committee -- probably under oath -- asked one of the attorneys to prepare Q &As for him. The attorney he went to was one of the most honorable fellows I've ever met, and sat him down and explained why he wouldn't do it. He could offer advice, could do the Qs, but wouldn't do the answers. Neither of them understood that perjury was being requested -- but the attorney knew that he had no business saying what the answers were.
Evidence? Or are you a bitter defense attorney who lost all his cases?
So I told the guy: if you take this to court, I'll come in and be a witness, here's my name and number. He did. I went to court and testified for him. Now, what I was expecting was that it would come down to some subtle question of what precisely yielding to traffic meant, as in, did the guy poke the front of his car too far out into traffic, or something like that. He might well lose on the grounds that the policeman's judgment on he scene about that is to be given deference, which is not unreasonable.
But what was stunning is that this is not what happened at all. A regular Oakland sworn police officer got up on the stand and made a story up, a complete fantasy involving this fellow dashing his car out into four lanes of traffic, and the cop having to slam on his brakes and go into a four-wheel skid to avoid a major accident. It was not just a little stretchin' of the truth, or a matter of point of view: it was bald lie from start to finish.
Needless to say, the guy lost the case. But I was shocked, since I'd been raised to think policemen had high standards of truthfulness, given the presumption of honesty they are given in the Courtroom, and even if I could see a cop stretching things a bit to put a real criminal behind bars, it would seem ludicrous to nail some poor slob on a minor traffic infraction. So that was an eye-opener. I don't say most cops aren't honest, but I do say that even one dishonest cop is such a disaster for the force that they'd be best advised to take him out and shoot him themselves. Sorry if this is a bit off-topic.
Evidence? Or are you a bitter defense attorney who lost all his cases?
I've handled a few cases on criminal defense, but I don't like the field and so they have been rather few. Maybe four appeals, no trials, in the last ten years, and I can't recall in any of the appeals where the law enforcement officers' veracity was seriously questionable. Maybe they colored the truth a little, or claimed to have better eyesight than seemed likely, but it was at least in the ballpark to where I can't fairly say anyone was lying.
But I also spent nine, almost ten, years where a major duty was representing a federal law enforcement agency, at the headquarters level. They lie. I learned quickly not to trust them unless I'd had one-on-one experience enough to know they were honest (and then had to protect them against their bosses, who thought a fellow who lost a case through honesty had failed). The same held for agents who were too reasonable. When they were on the level I backed them to the hilt. But not otherwise (whereupon they usually went behind my back in one way or another).
Might add that I knew two guys in law school who went on to become the top and second ranked prosecutors here (under the county attorney, which is an elective post and thus doesn't do trial work). One just got disbarred for suborning a police officer's perjury in a capital case (the officer himself was prosecuted, the prosecutor was not, surprise). The other died, and in his files was found undisclosed Brady material, indicative of innocence and which should have been disclosed, in around a dozen capital cases. These were, I repeat, capital cases. These were guys I knew and liked. What the disagreeable ones were like I would prefer not to know.
Maybe you are a prosecutor, and don't really question what your police officers do. A decent prosecutor challenges their police officers in the intake, because they often have the same story to tell about a stop and frisk or auto search. Also, narcotics teams often write up their buy/bust reports in the same room at the same time, for the sake of "accuracy."
Maybe you just don't know what you are talking about. Sad.
Indeed, the practice has so common it has spawned a new word -- "testilying" and merits its own entry in Wikipedia http://en.wikipedia.org/wiki/Testilying .
See also, University of Colorado Law Review http://en.wikipedia.org/wiki/Testilying
The sad fact is that parties lie in court all the time at every level. I practiced for quite a few years as a commercial litigator at two of the very elite law firms in the US. In the time I encountered many clients (including CEOs, senior executives and board members of Fortune 100 companies, senior governemnt officials and, in one case, a Catholic bishop) determined to lie on the stand. I came to view witness statements taken before full discover as almost useless and often worse than useless. I can only imagine how widespread the practice must be at the "lower" end of the litigation world where far fewer resources are expended to root out duplicity and parties are far more likley to destroy discoverable evidence refuting their stories.
I know practice primarily as an arbitrator in internatinal proceedings -- effectively a 'private trial court judge' and the amount of outright perjury I see is disheartening.
My 3 most memorable rationalizations from clients as to lies I had confronted them about are:
"I thought it sounded better this way."
"I didn't think you would have taken the case if I told you about that when we first met."
"He's never going to find out." [This one was said in reference to something that the opposing counsel could find out in less than a minute on LEXIS or Westlaw.]
Nick
We know that certain kinds of brain damage can cause people to lack all sense of risk aversion. See “Lessons From the Brain Damaged Investor” in a recent WSJ issue.
These people can’t experience the normal fear and anxiety that inhibit risk taking. As the article discusses, these people actually have a competitive advantage when it comes to investing. But I suspect the inability to manage risk is characteristic of many dumb criminals and even a few smart lawyers who get themselves in trouble.
So when I deposed the defendant, I asked her whether my witnesses observations were correct. She vehemently denied them. She said she had not done what my witness said she observed.
Opposing counsel then asked his client whether it was possible that my witness was correct but that the innocent explanation (detailed by him in the question) applied. I did not object or say anything. I let him spin the scenario and get her to affirm it.
If this case does not settle, the jury will learn of that exchange. Opposing counsel just sewed me a silk purse out of my sow's ear.
Opposing counsel is intelligent, practicing at a good firm, and my past experience has found his ethics to be above reproach.
I'd say John got the response he deserved, particularly since he appears to live in a cocoon that shelters him from reality and abuses those who do not share his consequent ignorance.
And this was another of JohnAnnArbor's contributions above. Also ignored by one Eugene Volokh.
Eugene, when you defend this jerk from those who counter him in the language he understands, you only encourage him to continue his abuse. Don't you see that?
Police lie on the witness stand. A lot. Not all of them, but more than a few. I've also heard the term cited by another poster above, "testilying", the term the cops have coined for what many of them do. I think their theory is that the bad guys do it too (and they certainly do), so the cops have to lie as well, to make sure the bad guys go to jail.
That particular hole in the story was becoming clear during the DFPD's direct of the defendant. Fishing, and obviously hoping to suggest an explanation to him, she asked, "Sir, did, maybe, you realize that you had forgotten your friend's number, or had left it at home in Mexico?"
The defendant replied, flatly and without hesitation, "No."
The judge quickly hid a smirk with her hand.
Afterwards I thanked the DFPD for illuminating the difference between subornation of perjury and attempted subornation of perjury.
The problem with juries and police testimony is not the one you pose, but the opposite. Juries are usually predisposed to accerpting police officer testimony without question, to believe anything a police officer says on the stand. The notable exceptions are juries drawn from some inner-city areas, which are at least open to the proposition that the police may not always be truthful.
A juror should approach each witness's credibility without any preconceived notions. Credibility judgments are to be made on an individualized basis, not on the basis of some characteristic assumedly shared by those who have the same status or occupation as the witness.
So just appraise the police witness's credibility the way you would any other witness's credibility. That is what the court usually tells jurors in the jury instructions,and if jurors followed that instruction, most defense lawyers would be happy indeed.
That means not assuming they are telling the truth merely because they are police officers. It means not giving them a leg up in credibility simply because of their status or occupation.
Jurors aren't stupid (although the police often say they are when juries have refused to swallow police lies). If jurors make the effort to judge the credibility of a police officer's testimony rather than just accepting
it without question, they will be, in most cases, perfectly capable of determining when a police officer is lying.
There may be occasional witnesses so skilled at lying that they get away with it despite skilled cross-examination and close jury scrutiny. Some of these are criminal defendants, of course, although most of them aren't as skilled at it as police officers. But the skilled liar is one of the hazards of jury trials.
but there's not much you can do about it, is there?
A long time ago, when I was a young lawyer, I used to wonder how those judges could look at themselves in the mirror in the morning. Now I know they're inured to it; it truly is business as usual, no big deal, just part of the War on Crime and, in their view, a necessary one.
Once in a while, you get a maverick judge who dares to question the most glaring lies. Not often, since most of the judges appointed these days are prosecutors or former prosecutors. But such a judge doesn't last long anyway. He/she ends up on the law enforcement hit list and is soon gone if he/she doesn't learn the rules.
It's getting to the point where not even defense lawyers are allowed to argue against law enforcement credibility. At a pretrial hearing a few years ago, following the testimony of one law enforcement witness who had delivered a stream of lies so obvious they were laughable (in fact, some spectators had laughed), I told the judge in open court that not a word the witness had said was believable. The judge admonished me, saying he felt sorry for the witness, who was in the spectator section when I made the statement. I replied that I felt sorry for my client, who was victim of the lies.
On the other hand, please don't think -- or help others think -- that just because someone is being rude, that's excuse for his adversaries to do the same. Also, please don't think that any attempt by me to help keep people in line will ever be entirely consistent. Sometimes I'll read some comments and others; sometimes I'll skim a bunch of posts, and won't notice a rudeness in one but will notice in another; sometimes I'll have a somewhat different reaction to the magnitude of the offense than you might.
If the standard for trying to keep discussion polite and substantive is perfect evenhandedness, you're never going to get it; and you're never going to get anything close unless you have a professional editor who can pay close attention to each comment. I figure that the best I can do is occasionally remark on those posts that I notice, and that strike me as the most egregious. (Naturally, if you want to politely chastise rude posters yourself, you may do so; just don't expect me to catch all the problems that you've found.)
That sort of "normal" distribution may be quite expected on, say, exam scores. But, in the halls of justice, it is quite alarming. That so many judges' attitudes run from complacency to endorsement is absolutely demoralizing.
It's been a few years, so I may get the details wrong, but the officer claimed he'd folded a pamphlet up and tossed it under the seat; the defense attorney used great stage craft and sarcasm to demonstrate that the crumpled ball found in the car looked nothing like a folded brochure
I told the jury during closing arguments that if they believed the arresting officer had not told the truth, then they should vote "Not guilty." The defendant was acquitted.
It seemed to me that the cop couldn't remember what he'd done with the paper, and had simply guessed. Do I think he planted the bindle? Hell no. The experience confirmed for me that the lies told by cops are probably related to procedure and search and seizure.
Do I think police officers regularly lie? I prefer to think not. Most of the cases I prosecute don't depend on the testimony of a cop without tons of corroborating evidence. Further, my sense is that most cops wouldn't throw away a career to convict one "dirtbag."
I tell every witness I intend to call that the only thing I want -- the only thing I insist on -- is that they tell the truth. If I have reason to doubt my arresting officer, or the complaining witness, I've never hesitated to dismiss the case.
The most disturbing thing about the defense lawyer mentioned in Eugene's post is that there's any discussion at all as to whether or not he ought to be disbarred for life.
So, there have been others - you just caught them before the case went to trial.
As to the defense attorney in this case, he deserves a conviction and a law license revocation.
Once, I submitted an affidavit that I later learned was false. I notified the court and withdrew the claim that the affidavit supported.
When looking at defense tactics, people need to know that defense attorneys aren't all-knowing. We rarely know what really happened. So we give our clients the benefit of the doubt. That said, if their story sounds fishy to me, I would advise them to take the Fifth because it will also sound fishey to the judge and jury. I leave the lying to the professionals with badges.
As to cops being dishonest, many are in small ways. For example, I have had prosecutors tell me that a law enforcement badge will get people out of tickets. It is an act of dishonesty (a small one, I admit, but an act of dishonesty nonetheless) to use your position as a law enforcer to break the law. It makes you wonder what other laws cops will break for their own personal convenience.
thus it seems to me the police's testimony is always somewhat fabricated. the officer's real recollection is based almost entirely on re-reading his own report months after the fact. yet he testifies as if he remembers well.
Once, while representing an indigent defendant, lawyer makes clever argument that gets him in major hot water with judge, probation, etc. Most lawyers would not make argument that ambiguity in plea (that ran in client's favor) should be construed against the author of agreement, the government. Judge flips out and chews everyone out, threatneing sanctions. Most lawyers would miss opportunity to see potential to shave months of client's sentence. Goes to show, no good deed goes unpunished.
Two, many asbsetos depositions where plaintiff's lawyers coacht the hell out of witness. One time victim was counseled to say he used asbestos "virtually every day" and that there was so much dust it was "like show." But at some point in the depo he started getting the two reversed to hilarious effect.
Lawyer at big firm advised me to pretend to be someone else in calling a potential witness. I refused and sought advice from partners. He was admonished by leadership; he also made partner soon thereafter. Lying to anyone violates ethical code rules. Of course, we're allowed to outsource to undercover agents, private investigators, etc. Kind of a weird anomoly, that.
Lawyer said brother in hospital and he couldn't be ready for hearing. I'm sure he was lying, but I let it slide.
Told client to come clean about facts of embarassing criminal/pr disaster. Honsty allays most concerns by would-be plaintiffs.
Lawyers come in all varieties; most are pretty professional and pretty honest. I've scheduled and rescheduled numerous hearings, evidentiary disputes, etc. through good faith negotiations. Most practice areas do not present the same kinds of dilemmas as criminal law. Criminal law can be really hard, particularly if client wants to testify. It's very unnatural to have to turn your client in after he perjures himself.
There is, of course, nothing more corrosive than the widespread practice of "testilying," which too many cops do, mostly out of a sense of their own individual superiority to the system.
I believe Pratt will get what he deserves. The others, unfortunately, probably won't.
Nick