Mimesis Law
21 August 2019

Perjury & Policy: A Fine Line

June 2, 2016 (Mimesis Law) — A trial date has been set for two recanting witnesses. Just last week, Fault Lines contributor Matt Brown covered the details behind the baseless case against Jerome Morgan. In short, Morgan’s conviction was set aside and a new trial ordered after two eyewitnesses recanted their 20-year-old identifications of Morgan. Now, they face perjury with a multiple guess verdict: they lied then or they are lying now; either way convict them of 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,” [Orleans Parish District Attorneny] 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.”

Cannizzaro believes in punishment. And, he sure doesn’t like having to dismiss his case against Morgan. But, with no other evidence, he finds himself without much of a case. That’s okay, though. He’ll just prosecute the next best thing and punish the witnesses.

Johnson and Shabazz maintain they were coerced into identifying Morgan back in 1994, when they were just 17 years old. Though he admits to a less-than-adequate investigation at the time of the murder, Cannizzaro finds it hard to believe the witnesses could have been coerced, and thus they deserve to be punished. It’s impossible for him to determine which statement is true, so it’s better to punish the witness.

While perjury is wicked and criminal, so is convicting the innocent. Here, two witnesses have come forward to right their wrongs. Perhaps at 17, they were not sophisticated enough to stand their ground with police. Perhaps in 2013, they found the courage to tell the truth. Why wouldn’t we want folks to come forward, even later after the passage of time, and right a wrong?

It’s not uncommon that witnesses recant. Sometimes it’s almost immediately. Other times it is years later. Children testify to abuse, then years later recant and claim pressure from a parent. Complainants in domestic violence cases recant almost daily. Most are not prosecuted for the recantation. So how does a prosecutor pick and choose which ones to prosecute?

Does it matter that Cannizzaro has no evidence without Johnson and Shabazz? Is it because they waited 20 years? It is because he cannot fathom how witnesses could be coerced?

Whether or not Cannizzaro can believe coercion existed, Judge Darryl Derbigny, who overturned Morgan’s conviction in January, 2014, found that “the evidence presented before this court is wrought with deception, manipulation and coercion by the New Orleans Police Department.” While it was clear to one fact-finder, it does not appear so clear to the prosecutor.

In fact, while contemplating a retrial of Morgan, Cannizzaro intended to continue the prosecutions for perjury while simultaneously sponsoring Johnson and Shabazz as witnesses against Morgan. His theory was to offer up both statements and let the jury decide which was true. However, that theory fell by the wayside when the Louisiana Supreme Court held Cannizzaro could not offer the prior identification testimony unless Johnson and Shabazz took the stand, which they would not do while facing perjury charges themselves.

Prosecuting witnesses who recant can have a chilling affect on witnesses in general. Knowing he would face perjury charges and prison for telling the truth, what incentive would anyone have to come forward and set the record straight? Prosecuting them, or threatening to prosecute them, can also keep them from recanting, even if the original story was a lie.

While punishing perjury perhaps deters false testimony, prosecuting it also curbs a willingness to come forward and set the record straight. With domestic violence cases, prosecutors adopt a practice or policy of not prosecuting victims who recant. The perjury or false statement is still present: they lied initially or they are lying now.

Yet, few prosecutors want to be seen as prosecuting a victim. And, most prosecutors believe it is the recantation that is the lie: they are lying now to protect a spouse, to get the bread-winner out of jail and back home, and to prevent the abuser from becoming more angry or abusive. Even where the “victim” turns out to have lied initially, prosecutors are reluctant to punish that lie for fear that true victims will be hesitant to come forward.

So, if policy dictates letting a perjurer go free so as not to thwart others from coming forward, why is it different when the perjurer comes forward to free the innocent? Why are domestic violence lies treated differently than other lies? Is it because the domestic violence case can usually go forward with liberal excited utterances and 911 calls even without the complainant testifying? Yet, here, the case fell apart without the witnesses. Is it just because prosecutors generally believe the domestic violence occurred? Yet, they cannot believe a cop would coerce an identification.

Robert Hjortsberg, attorney for Johnson and Shabazz, sums it up pretty well:

It seems a little ridiculous. I’m a little surprised they’ve continued this prosecution against my clients. The people they should be prosecuting are the NOPD officers who were involved in coercing their initial statements. They were in a rush to get things done quickly rather than accurately.

A less-than-thorough investigation, a finding of deception, manipulation and coercion by the New Orleans Police Department, and an overturned conviction have left the prosecutor with only one case to prosecute: those who come forward to right a wrong will be punished. Maybe his example will deter others from committing perjury. Unfortunately, and more likely, it will simple keep folks from coming forward to correct injustices.

3 Comments on this post.

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  • Jeff Gamso
    2 June 2016 at 8:49 pm - Reply

    Is there an SOL that would require the prosecutor to prove that the recantations were the lie?

    If not, wouldn’t the jurors all have to agree on which statements were lies? That’d be tough with the prosecutor explaining that Morgan was actually guilty and the original statements were therefore true, and a judge testifying that the police coerced the original statements and that the recantations were true.

    I assume the case won’t actually get tried (and of course it shouldn’t), but still, it’d be fun to try.

    • JoAnne Musick
      2 June 2016 at 9:09 pm - Reply

      Generally, where there are two irreconcilable (and material) statements made under oath, the prosecutor does not have to prove which one is false – only that one cannot be true if the other is. The witnesses testified under oath at the original trial in 1994 and under oath at the hearing to vacate the conviction in 2013. In 1994 they said Morgan was the gunman. In 2013 they said Morgan was not the gunman. Two irreconcilable statements, one of which cannot be true. Any statute of limitations would run based on the most recent statement.

      If Morgan were being retried, it would be difficult for the prosecutor to argue the 1st testimony (1994) was false because that would undermine his prosecution of Morgan. So, in theory, the prosecutor should believe the second testimony (2013) is false. But nothing requires him to commit to one or the other being the false statement.

      The judge would not testify that the police coerced the statements and that the recantation is therefore true – though he found coercion, it is simply his belief based on the evidence he has heard. Not something that is treated as fact for the judge to then testify to. If this goes to trial, that will be a fact issue for the judge or jury.

      It would be a fun case to try. The defense will obviously be no intent to lie in the first place (1994) but was rather a product of duress or coercion rather than free will. Perjury still must be intentional or knowing.

      • Jeff Gamso
        2 June 2016 at 10:11 pm - Reply

        I know the judge wouldn’t actually get to testify to it, but I’d be making motions like crazy to allow it, and I’d be damn sure to let the jury know – one way or another (objection to opening statement sustained, sure, I can live with that)- what the judge said.

        But on the SOL, and I’ve never actually had a perjury case though I do know recanting witnesses who’ve been threatened with perjury prosecutions, “He lied sometime under oath” still leaves the question of when that time was. And if it was too long before the SOL, why won’t that bar it? Unless there’s something like a contradictory statement tolling provision, I suppose.

        Seems to me all that’s ripe for some dandy motion practice unless there’s actually controlling law on it (and maybe even then).