Yesterday, we began our discussion about the Littleton coach (hereinafter, the “Defendant”) who had apparently lied before a Grand Jury when summoned to testify in connection with an ongoing Middlesex County rape investigation.
As we discussed, and it certainly deserves repeating, lying to authorities about an ongoing investigation, either under oath or not, is a crime. The only thing that changes is which crime it is going to be.
In this case, the apparent lies were spoken under oath. In the Grand Jury, witnesses are sworn in and questioned by a prosecutor about whatever is being investigated. To lie while under oath is the crime of perjury.
The Defendant was questioned about, among other things, whether he had committed certain crimes such as providing alcohol to minors. He denied having done so.
The government decided that the Defendant had committed perjury because his testimony, albeit self-serving, was contradicted by other witnesses.
To me, this brings about a couple of troubling questions.
Attorney Sam’s Take On The Fifth Amendment And Prosecutorial Discretion
First of all, to be fair, let’s remember that, whatever I think about it, the government won the trial. The jury was convinced beyond a reasonable doubt that the Defendant lied under oath.
There is something unusual about this case though. Prosecutions for perjury generally happen when a witness testifies one way in one proceeding and then testifies differently at another. Sometimes the earlier “proceeding” is a paper signed under the “pains and penalties of perjury”. Those matters, though, are generally subsumed by a general allegation of some Massachusetts white collar crime involving some kind of fraud.
Most often, a prosecutor is angered by the fact that a witness testified in the grand jury (inculpating the accused) and a different way at trial (that is not inculpatory for the accused). Given the two very different statements, the prosecutor pulls the “revenge card” and goes after the witness for perjury.
The proof is that both statements, which were under oath, cannot be true and so, regardless of which one is the truth, one of the statements must be a lie. I must say, though, that the prosecution’s argument is usually that the trial testimony was the lie. This is because, as we have often discussed the prosecution has its theory on the facts and woe be to whoever contradicts that theory. The theory must be the truth…and so anything inconsistent is unreliable and probably a lie.
This case follows the same rationale, if not the fact scenario. Here, the Defendant is not contradicted by his own testimony, but by the testimony of others.
So…how do we know whose testimony was correct or truthful?
Well, cleary, the testimony of the other witnesses was more detrimental to the rape suspect, so they had to be telling the truth. If they are telling the truth, then the noncooperative Defendant could not be telling the truth. Despite the fact that the events occurred many years ago, it is worth believing that said untruths were not mistakes in memory but deliberate lies.
Mistakes are not prosecutable.
This helps to send the message that witnesses had better testify to the truth as the government sees it!
Of course, in order to testify in a manner that the government found truthful, it would seem that the Defendant would have to incriminate himself. Kind of an unfair position to be in…!
There was a law-abiding solution available, though. The Fifth Amendment of the United States Constitution allows a person to decline testifying when said testimony might tend to inculpate oneself. This was the way the Defendant should have gone.
“Well, Sam, wouldn’t the prosecutor have told him that?”
Maybe. I would think he should, but, then again, it would not be the first time that prosecutors and I disagreed.
It is perhaps another example of someone trying to handle the rough waters of the criminal justice ocean on their own, without a decent guide. In other words, he should have retained the aid of an experienced criminal defense attorney at the moment the summons came in.
If you find yourself sought for answers in an https://criminal.altmanllp.com/criminal-investigation.html, do not make the same mistake. If you would like to speak to me about it, please free to call me at 617-492-3000 to arrange a free initial consultation..
TOMORROW: Given today’s expected guilty pleas out of South Hadley…a return to bullying!
To view the article upon which this blog is based, please go to http://www.boston.com/news/local/breaking_news/2011/05/ex-gymnastics_c.html