Archive | September 2013

It’s not a lie if you believe it

When asked what his secret to lying was, George Costanza replied that “It’s not a lie if you believe it.”  Costanza’s zen-like phrase on the art of lying is a pretty good place to start when trying to understand two recent rulings in York County Superior Court.

Last month, Justice Roland Cole ruled that Alexis Trowbridge (Wright) could plead the fifth in the trial of Donald Hill.  The State had alleged that Mr. Hill was a patron of Wright at her now infamous Zumba Studio.  The ruling was surprising and unique because Wright had resolved all of the charges against her and was in execution of sentence.  Generally, in order to plead the fifth, a witness must be in danger of incriminating themselves during testimony and there must be a genuine likelihood of prosecution.  Wright’s lawyer, Sarah Churchill, argued successfully that Wright could face perjury charges based upon her testimony.  The State has already given Wright immunity for her testimony but prosecutors cannot give her immunity for future criminal conduct (which her testimony, if perjury, would constitute).

Today, Justice John O’Neil issued a similar ruling in another so-called “John” case in York County.  I was a little confused by the first ruling by Justice Cole, largely because my only source of information was the Press Herald (no pun intended).  I was able to watch the oral arguments by ADA Patrick Gordon and Sarah Churchill and hear Justice O’Neil’s rationale behind today’s decision.

As far as the arguments go, Attorney Churchill argued that the State has made it entirely clear to Wright, via a previous statement, that they do not believer her assertion that her prostitution activities were carried out because she believed she was actually a government agent working with Mark Strong.  Whether Wright still believes that she was working undercover for the State was not made clear.  Churchill further stressed that Wright’s genuine believe as to her activities would put her at risk for perjury charges.  ADA Gordon argued that there is not, and never has been a right to invoke the right against self-incrimination in order to testify falsely. He also argued that the State would not seek to prosecute Wright based solely upon her beliefs. I will note that in terms of black letter law, Gordon’s on the better end.  “The Fifth Amendment guarantees the right to be free from compulsory self-incrimination.  It permits an individual to refuse to answer questions; but it does not give him the right to answer falsely.  United States v. Mandjano, 425 U.S. 564 (1976).  Furthermore, the Fifth Amendment “does not endow the person who testifies with a license to commit perjury.”  Glickstein v. United States, 222 U.S. 139 (1911).

So what exactly is happening here?  I’ll take a shot at it.  A grant of immunity protects an individual from any prosecution based upon his or her testimony except perjury or the making of false statements.  Wright would likely testify that she was a state agent when she was engaged in activities that constituted prostitution.  Churchill argued the State has expressly said they believe that is not true.  I’m pretty confident they have also implied it by extensively prosecuting her, convicting her, and putting her in jail.  It is self-evident that prosecutors do not believe her story.  In today’s ruling, Justice O’Neil referenced that Wright may have a complete defense to a perjury charge if she truly believes that she was an agent for the State.  Going back to Costanza, it’s not a crime if you believe it (it is a complete defense to perjury in Maine if you believe you are telling the truth). The key to his ruling however was a statement to the effect of “because the State has manifested a believe as to the truthfulness of Wright’s testimony, there is a substantial risk of a perjury prosecution.”  After that statement, he held that Wright could invoke.

I have practiced in front of Justice O’Neil my entire career.  His professionalism, demeanor, and legal expertise are exceptional and he is far more intelligent than I am.  But, I think he missed the call on this ruling, and I truly believe it is because this issue is being overanalyzed.  The Fifth Amendment protects us from incriminating ourselves.  It does not give us the right to commit a new crime.  The fact that the State has manifested a belief in the veracity of the secret agent theory is immaterial.  The State frequently has to deal with witnesses that have become a little dodgy during the case.  The State will often call a witness that the prosecutor believes will testify falsely.  The witness cannot plead the Fifth simply because the State does not believe him or her.  Anticipatory perjury does not exist.  The other weird thing is that everyone seems to acknowledge that Wright will testify that she was a secret agent.  It’s almost like there has been a mini-perjury trial being held where Wright’s testimony is already on transcript.  We do not know how she would testify, which is another reason why anticipatory perjury does not exist.  Perhaps after being sworn, she might surprise people with her testimony.

The most difficult aspect of both rulings is that they’re a) pretty weird and b) could have strange consequences.  Essentially, witnesses whom are disbelieved, but otherwise in no danger of prosecution, may now plead the fifth.  I can see this scenario occurring in domestic violence cases where the alleged victim no longer wishes to cooperate with prosecution.

As a defense attorney, I’m not exactly opposed to these rulings, but they are not easy to interpret either.  But neither ruling is wrong if you believe they’re right.