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Good thing the prosecutor didn’t go after the lawyer.

In Texas, it is an offense to file document in the courts that contains a falsehood or misstatement. In State v. Vasilas, 187 S.W.3d 486 (Tex. Crim. App. 2006), an attorney filed a petition for expunction for a client (another attorney, oddly enough) which contained false statements. He was charged under the penal code provision for tampering with government records. Quoth the Court of Criminal Appeals:

“Although the petition for expunction was not a governmental record when Appellee prepared it, it became a governmental record once the court received it and he used it in seeking to obtain the expunction of records . . . By enacting § 37.10, the legislature intended to prevent a multitude of harms, including the destruction of governmental records, the perpetration of a fraud upon the court, and the miscarriage of justice that could result from the use of falsified records. There is nothing absurd about the legislature criminalizing such conduct.”

Really? You sure about that?

Well, the problem is this. In many jurisdictions, you are not allowed to plead guilty unless you are stating you are guilty. You can’t say to the judge in many places, “I am innocent, but I am pleading guilty to a lesser offense because I think it is the safest route.” if you say that then often as a matter of law, the judge cannot accept that plea.

But… we all know that this is exactly what happens a certain percentage of the time. hard to know how often, but it happens.

So then if you are seeking habeas review, many jurisdictions require you to assert you are “actually innocent.” i know the feds do. now sometimes that innocence can extend to just the sentence, thus the odd plea of “innocent of the death penalty” when in fact you committed the crime, but merely argue that you don’t deserve death for it.

So that creates a contradiction. when you plead guilty, you are often saying under oath you did it. but if you then file a habeas in many juristictions you are also saying you are innocent. So as a matter of logic you had to be lying one of those times. So the prosecutor called him on that contradiction.

And truth be told we see perjury in court all the time and a huge percentage of the time the DA has no interest. i mean OJ lied before the whole world in his civil case on matters great and small (from “I am innocent” to that he wouldn’t wear those Bruni Mali shoes), and i never heard a peep out of Cali authorities.

Now the logical result of allowing the prosecutors to call this perjury is that it means once you plead guilty, you are stuck with it. You can’t later say to someone else “I am innocent.” if you don’t like that, then you have to create some kind of privileged space where basically we are saying its okay to lie during a plea bargain. And should it be? i am of two minds on that. on one hand, i will constantly say i am alergic to B______t. so i don’t like what a sham these things are sometimes. but on the other hand, i have to think that there are some innocent people who would normally plead “no contest” but would draw the line at actually saying they did it in open court, and i would also say that the courts shouldn’t knowingly go along with a person throwing themselves under the bus like that.

For instance, is an innocent african american more likely to plead guilty falsely because they have no faith that our system will work for them due to racism? i think the answer is probably yes. but at the same time, i think that negative assessment would be incorrect and if judges were more pro-active in preventing pleas based on fear of racism, we might see better outcomes. but then at the same time my libertarian streak bristles at the notion that a judge might force a person to risk a conviction rather than choose their own risk. i mean maybe I as a white guy have too much of a sunny view of things, and if i as a judge force the black dude to put on a defense, i am actually screwing him over.

So there is no easy answers there.

Btw, am i the only one who found this line from the article creepy?

“I do all the writs for all the white people in TDC,” said McCann. “I felt sorry for him that’s why I helped him.”

I’ll add something else. the allegation also was that he was misrepresenting what the indictment said. now its one thing to dispute what happened, but the contents are generally hard to dispute. you read it and see what is there.

Turn it around. Is a “Not Guilty” plea when you did in fact do the crime then not perjury? If your convicted can they now also change you with perjury?

Mark:
From the POV of someone who is decidedly not a lawyer, I would have to say no. The whole point of being able to plead “not guilty” is to force the state to present it’s case, good, bad, or indifferent. I guess it all stems from the legal theory of “innocent until proven guilty”.
Pleading “not guilty” is not a form of perjury, it’s an assertion of your rights and protections.