Mimesis Law
27 January 2022

Wilkinson: Systemic Integrity Means Perjury Gets A Pass

Sept. 9, 2015 (Mimesis Law) — James Kendell Wilkinson testified he wasn’t the driver. Mark Magrann, the officer who issued the citation was “about 98 percent sure” it was Wilkinson driving the car, but not certain. Wilkinson was found not guilty of speeding by a traffic court judge.

On his way out, he spoke with the officer in the hallway. Magrann said it “clicked” for him at that point; he remembered Wilkinson had indeed been the driver. It was Wilkinson’s arrogance and the fact he made a comment like one the driver made during the stop that convinced him.

The officer initiated an investigation, and police eventually executed a search warrant at Wilkinson’s home. They found the citation the officer wrote during the stop where Wilkinson denied being the driver. Wilkinson was arrested, tried and convicted of perjury.

There are many troubling details to the case, the most obvious one being that Wilkinson almost certainly got away with speeding by lying under oath. Finding the citation in his home was a spectacular smoking gun. In contrast to the normal situation giving rise to tension between finality and accuracy, finality for Wilkinson not only meant getting away with speeding, but with perjury as well.

On the other hand, seeking accuracy in Wilkinson’s case involved launching an investigation into an acquitted man. It’s actually surprising the officer pushed the issue at all. Respecting the verdict, or at least grudgingly letting it stand, is essential if the system is going to work. No one likes to lose, but someone always does. Then it’s time to move on.

But they didn’t move on and convicted Wilkinson for his perjury in obtaining an acquittal for speeding. The 9th Circuit, in Wilkinson v. Gingrich, affirmed the grant of a writ of habeas corpus.

At its heart, everything that came after Wilkinson’s acquittal amounts to the state saying he was guilty and shouldn’t have won. It makes the officer look like a sore loser. It makes the system look like a sham, as if convictions are a foregone conclusion and the state will keep trying again and again until it wins.

When Wilkinson argued that double jeopardy and collateral estoppel barred the perjury prosecution, the trial court judge made it very clear where the balance between finality and accuracy should be struck. It explained:

“if the court were to accept the theory of collateral estoppel, then the end result would mean that nobody could ever be prosecuted for perjury if they were successful in maintaining the perjury or the fraud.”

Of course, perjury isn’t always seem as obvious as it was in Wilkinson’s case. The court didn’t seem to acknowledge that. More often, perjury is in the eye of the beholder. People who succeed in maintaining the perjury may be people police prefer to disbelieve, but who are actually telling the truth. The trial court’s reasoning could lead down a very slippery slope.

Unlike the lower court, the state appellate court avoided worrying about policy too much, instead determining the perjury case wasn’t barred because the traffic court judge didn’t necessarily determine Wilkinson testified truthfully. It’s an interesting view, as Wilkinson’s defense was that he wasn’t the driver. It doesn’t appear he put on any other defense at all.

Even if the traffic court judge acquitted him purely because the state had not met its burden, it still would be because it did not meet its burden regarding the identity of the driver. Reasonable doubt isn’t an abstract, standalone concept. It exists with regard to the elements of the offense, the ones the state bears the burden of proving.

Like the trial court, the Ninth Circuit made it very clear where it struck the balance for the purposes of accuracy versus finality. It was about as far from the state courts as possible. The Ninth Circuit first explained that what mattered was that the issues in both cases were sufficiently similar and material for collateral estoppel and the Double Jeopardy Clause to apply, and that the traffic court judge in the first case necessarily decided the ultimate issue in the second case.

Where it really stressed the importance of finality, however, was in addressing the state’s cited authority suggesting collateral estoppel does not apply to perjury prosecutions involving newly discovered evidence of a defendant’s dishonesty:

Collateral estoppel is a part of the Fifth Amendment’s guarantee against double jeopardy. That guarantee is not suspended simply because prosecutors uncover new evidence showing that defendants who were acquitted after taking the stand were lying when they testified that they did not commit the charged offenses. Permitting a perjury exception to the protection the Double Jeopardy Clause affords a defendant would undermine the “overriding concern” of the Clause, which is to prevent the government “with its vastly superior resources,” from “wear[ing] down the defendant, so that ‘even though innocent he may be found guilty.’” The handful of state court decisions that mistakenly attempt to carve out a special exception to the Constitution’s protection against double jeopardy for perjury prosecutions do not represent “fairminded disagreement” on an open question of constitutional law. Rather, they represent a fundamental misunderstanding of the Double Jeopardy Clause and the Supreme Court decisions that explain its purpose and operation.

It’s powerful language. It’s also not every day a court explicitly says that several other courts fundamentally misunderstood a clause in the Constitution and the applicable case law.

The opinion demonstrates a commitment to some principles that aren’t always easy to follow. Wilkinson is probably going to get away with two crimes he almost certainly committed. At best, he’ll maybe have learned a lesson about not talking to police, even after you’ve just been found not guilty. While many courts would be hesitant to let that happen simply to avoid abuse by the state, even in a case where the state pushes things as far as it did here, the Ninth Circuit wasn’t. In the end, finality wins. Whether he deserves it or not, that means Wilkinson wins too.

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  • I’ve Been Writing | Tempe Criminal Defense
    23 September 2015 at 1:06 pm - Reply

    […] Sometimes, stopping government overreaching trumps prosecuting perjury and convicting the guilty. […]