Berl Falbaum
The most hallowed, solemn and quasi-sacred moments in trials come when, with respectful silence in the courtroom, witnesses raise their right hand and swear, “To tell the truth and nothing but the truth, so help me God.”
The problem: It’s a lie. And all parties in trials -- judges, lawyers, clerks, deputies -- know it’s a lie.
Lying is ingrained in the legal system. Why? Because, as I will discuss below, very few are ever held accountable.
As the famous late criminal defense attorney, F. Lee Bailey observed: “I have never seen a major trial which lacked significant perjury, and I have never seen that perjury punished.” Note the use of the absolute: “never.”
Mark Twain was a little more satirical with, “The jury system puts a ban upon intelligence and honesty and a premium upon ignorance, stupidity and perjury (emphasis mine).”
Jonathan Swift gave us the following observation in Gulliver’s Travels when he tried to explain the legal system to the Houyhnhnms, a fictional race of intelligent horses:
“…there was a society of men among us, bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid.”
A public display of perjury going unpunished came recently in the trial of conspiracy theorist Alex Jones, who was being sued for defamation by parents who lost a son in the Sandy Hook massacre. Jones had claimed the massacre was a “hoax” and the jury awarded $49.2 million to the parents: $4.1 million in compensatory damages and the rest in punitive damages.
With Jones on the stand, the judge, Maya Guerra Gamble, warned Jones that he was “abusing her tolerance.” She continued:
"You're already under oath to tell the truth. You've already violated that oath twice today...It seems absurd to instruct you again that you must tell the truth while you testify. Yet here I am."
I continued reading the story waiting -- as I believe most people would -- for the punishment. But what followed? Nothing.
Yes, it would have been absurd to instruct him again, but it would not have been absurd to send him to jail for a week or so or even longer. Guaranteed: He would not have lied again.
Some of Jones’s lies were discovered when his attorneys, by mistake, sent texts to the other side. Which means his lawyers were complicit in lying.
Perjury is a crime and left unchecked destroys lives but apparently Gamble doesn’t consider perjury a serious offense. For instance, she would not have warned him again if Jones were charged with murder, arson or burglary. She would not have told him not to engage in these crimes again and then set him free.
I was not surprised at the judge’s stance because when I was working on a book on a man who served 26 years for a murder he did not commit, I learned that perjury is a crime which is generally ignored, except in very high-profile cases such as former President Bill Clinton who was impeached on charges of perjury in the Monica Lewinsky sex scandal and in the case of former Detroit Mayor Kwame Kilpatrick, who was convicted of perjury in 2008.
(My book, Justice Failed: How Legal “Ethics” Kept Me in Prison for 26 Years, tells the story of Alton Logan, an African-American in Chicago who served the time even though four lawyers knew he was innocent. Their client had committed the murder but the legal ethics code on lawyer-client privilege required them to maintain their silence).
As I wrote in my book, statistics on prosecutions for perjury are hard to come by but the legal community generally agrees that lying under oath is very prevalent.
I came across a story, perhaps apocryphal, in which a judge begins his trials, pounding the gavel, and exclaims, “Let the perjury begin.”
Indeed, in 2006, Oakland County Circuit Court Judge Michael D. Warren, Jr. made the front page of The Detroit News when he announced that he would begin holding people accountable for perjury.
What people would consider simple logic, was deemed to be major news.
Warren observed: “There are very few judges who take it [perjury] seriously. That only encourages those people who have a predilection to break the law to continue to do so. People respond to sanctions…
“What we forget here is that perjury is not just an afront to the court, it has severe consequences for the party playing by the rules.”
When I interviewed the judge in 2015, he had pursued about 20 cases of perjury. He added that perjury in his courtroom decreased because all parties knew he would hold them accountable.
Explaining the difficulties of prosecuting perjury, an Oakland County prosecutor told me: “They [juries] expect everyone to lie a little bit in court.”
Maybe we should instruct juries to punish perjurers “a little bit.”
The legal community would do well and could serve its self-interest by overhauling the present system. It might call a major conference at which it would adopt appropriate measures to assure that perjury was prosecuted and punished accordingly.
That would go a long way in serving justice and creating greater respect for the legal system.
And that’s no lie.
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Berl Falbaum is a veteran journalist and author of 12 books.
