Mimesis Law
17 August 2017

For New Orleans DA, Perjury Is In The Eye Of The Beholder

February 14, 2017 (Fault Lines) – People probably aren’t surprised to hear witnesses regularly lie in criminal trials. But they might be surprised it’s not usually those slimy defense lawyers that put the liars on the stand.

New Orleans District Attorney Leon Cannizzaro is quickly gaining a reputation for ill-conceived prosecutions. His latest one takes the cake, but there was nothing to celebrate when it was over.

Last May, Fault Lines contributor Matt Brown brought you the story of Jerome Morgan. Morgan served two decades in prison for a murder before his life sentence was overturned. The two main eyewitnesses against him recanted their statements, testifying New Orleans police officers coerced them into identifying Morgan as the shooter.

JoAnne Musick followed up with a story about perjury charges against the two recanting witnesses. District Attorney Cannizzaro seemed very concerned with justice at the time, explaining why Kevin Johnson and Hakim Shabazz were being charged with perjury:

“Johnson and Shabazz either perjured themselves in 2013 to allow a cold-blooded murderer to walk free, or they perjured themselves in 1994 to put an innocent man in jail,” Cannizzaro said in his statement last week. “Unfortunately, the passage of time, less-than-adequate investigative work at the time of the murder, and legal procedures have made it impossible for us to determine which it is for sure. However, either way they deserve to be punished.”

That’s a neat verbal trick by the D.A. Because of a crappy investigation and that complicated stuff called “legal procedures,” it seems like prosecutors can’t figure out which statement Johnson and Shabazz made up. The one the New Orleans police coerced them into or the one that set a convict free.

A judge found the two men not guilty last month after a bench trial. The order was short and sweet.

“The court finds the state failed to meet its burden of proof. Not guilty,” [Criminal District Judge Ben] Willard said tersely, before stepping down from the bench without elaboration to conclude a bench trial that began in his courtroom Friday.

Cannizzaro continued to whine about the unfairness of not being able to collect a pound of flesh from somebody to make up for his office’s screw up.

“They either lied in 1994 to put an innocent person in jail – a lie that the defendants felt no pressing need to correct until they were approached by Mr. Morgan’s attorneys. Or, they lied in 2013 to allow a man guilty of murder to walk free,” Cannizzaro’s statement said of Johnson and Shabazz. 

The New Orleans prosecutor claimed he didn’t have to prove which exact statement was a lie, just that one of them had to be.

District attorney Leon Cannizzaro’s office, in a statement Monday, called the verdict “highly disappointing” and said the law did not require prosecutors to prove which statement — whether the initial identification by the men or their testimony recanting years later — was false.

The prosecutor handling the case was unapologetic about the trial.

[Prosecutor Francesca] Bridges said Friday her office makes no apologies for prosecuting two men who gave inconsistent statements about the same murder defendant 20 years apart, while presenting no evidence they had been coerced.

That’s the beauty of having the government behind you. Apologies are for suckers. According to one of the defense attorneys involved in the trial, the New Orleans prosecutors were the ones who failed to look into the coercion.

“You clearly cannot say that you’re going to find someone guilty of perjury under a threat of coercion without even questioning the officer who is supposed to have engaged in the coercion,” [New Orleans City Councilman and defense attorney Jason] Williams said Monday. “And that never happened, which means there was never a formal inquiry as to whether or not the coercion existed.”

The New Orleans District Attorney’s Office took a simplistic view of the case based on a favorite old cross-examination trick: “Were you lying then or are you lying now?” Assuming an identification of a murderer and a later recantation of that identification couldn’t both be true, a perjury conviction seems like a foregone conclusion. If you are a simpleton.

There is no question one of the statements wasn’t true. But the two men claimed the first statement was coerced by the police department. Police officers coercing teenagers is something to investigate. But the investigation shouldn’t be over the witness’s perjury. A gambler would agree the smart money would be betting the problem was the 1993 version of the New Orleans Police Department.

The 90s were full of shocking news stories about the NOPD’s abuse, misconduct, and criminal activity. Perhaps the most outrageous example came in 1994 when a woman was killed at the behest of an NOPD police officer after she reported that he’d beaten up a teenager in her neighborhood. The hit was recorded in the process of a federal investigation into a cocaine ring involving that officer.

New Orleans law enforcement has a long history of problems. So does the District Attorney’s Office. Cannizzaro, an ex-judge and ex-prosecutor, tosses around promises to reform the New Orleans criminal justice system and claims a “broad understanding of our criminal justice system.”

Ironic. Cannizzaro actually has a breathtaking misunderstanding of not only the criminal justice system, but his role in it. When confronted with a chance to correct a wrong, he decided to double down and make sure somebody paid for a wrongful conviction based on perjury.

Of course, it wasn’t law enforcement he wanted to make pay. Prosecutors like Cannizzaro should be careful trying to expand the use of perjury in wrongful convictions. Based on the most common cause of those wrongful convictions, they may find that strategy backfiring on them.

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