NYT: November 17, 1998
In Truth, Even Those Little Lies Are Prosecuted Once in a While
By WILLIAM GLABERSON
A Texas judge was convicted of perjury for declaring that he had used political contributions to buy flowers for his staff when, in fact, the flowers went to his wife.
A Florida postal supervisor is in prison for denying in a civil deposition that she had a sexual relationship with a subordinate.
An Ohio youth who was arrested for underage drinking testified that he had never been read his rights by the police. He was then convicted of perjury for lying and sent to jail for 60 days.
Defenders of President Clinton have argued that his accusers are overzealous in saying he should be impeached or subject to criminal charges on the grounds that he committed perjury when he denied in a civil deposition that he had a sexual relationship with Monica Lewinsky.
But a review of more than 100 perjury cases in state and federal courts, and statistics on the number of perjury prosecutions brought around the country, show that people are prosecuted in America for what might be called small lies more regularly than the Clinton defenders have suggested.
With the House Judiciary Committee's hearings into the possible impeachment of the president set to begin this week. The president's defenders are expected to return to their theme. The president's lawyer, David Kendall, has said that "no prosecutor in the United States would bring a perjury prosecution on the basis" of the kinds of questions Clinton was asked about his sex life in the Paula Jones sexual harassment suit.
But interviews with lawyers, legal experts and with a woman who is serving a sentence for lying about sex in a civil case show that, far from being shrugged off, the threat of prosecution for perjury, even in civil cases, is a crucial deterrent in the legal system.
"Symbolically, the sword of Damocles hangs over every perjurer's head, and no one can know whether they're the perjurer that's going to be prosecuted," said Jeffrey Abramson, a former prosecutor and an expert on jury trials who is a professor of legal studies and politics at Brandeis University.
One statistic on perjury prosecutions has been widely circulated since the president's supporters began arguing that perjury was little more than a technicality seized upon by the president's enemies: Of 49,655 cases filed by federal prosecutors last year, only 87 were for perjury.
State courts, where statistics are harder to come by, are another matter. Data supplied by court officials in two states, California and New York, suggest that perjury prosecutions are not as rare as some have suggested. In California alone last year, there were 4,318 felony perjury cases. In New York there were 395 perjury cases last year. And even in the federal system, prison officials said in October that 115 people were serving sentences for perjury in federal prisons alone.
The review of the cases offers some support for Clinton's defenders. Perjury charges are brought in civil cases far less frequently than in criminal cases. In addition, the law of perjury is highly technical, with courts sometimes ruling that some obviously misleading statements like those Clinton acknowledges making may not constitute perjury under the law.
But the cases also show that, even in civil cases, judges are sometimes provoked by perjury more than by many of the evils they see every day. In the Florida case of the postal supervisor in July, the judge, Lacey A. Collier, sentenced the supervisor, Diane Parker, to 13 months for falsely denying in a civil deposition that she had a sexual relationship with a male subordinate.
"One of the most troubling things in our society today," Collier said, "is people who raise their hands, take an oath to tell the truth and then fail to do that. An analogy might be made to termites that get inside your house. Nobody sees it, nobody knows about it until the house collapses around you."
Some courts have gone out of their way to say that perjury in civil cases is as important as perjury in any other testimony.
In a 1988 civil suit in Georgia, for example, a founder of the Southern White Knights of the Ku Klux Klan, David Wayne Holland, was found liable for violating the rights of civil-rights marchers.
In 1990, Holland was convicted of perjury for lying about his assets so the plaintiffs could not recover any of the $450,000 in damages they had won. A federal judge in Georgia said the sentence in the civil proceeding would be less severe than if Holland had lied in a criminal case. The judge sentenced Holland to home detention and community service.
But in 1994, a federal appeals court criticized that ruling and sent the case back for a sterner sentence. "We categorically reject any suggestion, implicit or otherwise," the appeals court judges said, "that perjury is somehow less serious when made in a civil proceeding."
The review of perjury cases also shows that, while lies about sex are rarely the subject of perjury prosecutions, there are precedents that come quite close to the allegations against Clinton.
In 1984, Pam Parsons, the former women's basketball coach at the University of South Carolina went to prison for four months after a perjury conviction for her testimony in a civil libel suit she had filed against Sports Illustrated.
The magazine had reported that she had a lesbian relationship with at least one team member and recruited players "with sex in mind." Ms. Parsons and the player testified, denying, among other things, that they had frequented a lesbian bar. The jury in the libel case decided for the magazine. Then the women were indicted for perjury. Both pleaded guilty.
In a current case, Barbara Battalino, a former Veterans Affairs psychiatrist at a medical center in Idaho, has become, perhaps, the best known admitted perjurer in America. She now acknowledges she performed oral sex in her government office on a Vietnam veteran who was seeking psychiatric help in 1991.
She says the man, Ed Arthur, was never formally her patient. But she also admits that when he brought a civil suit for medical malpractice and sexual harassment, she lied when his lawyer asked her at a deposition whether "anything of a sexual nature" occurred in her office when she was alone with Arthur.
Arthur provided the prosecutors with tapes he had secretly made of her telling him to deny their affair. She was convicted of perjury. She is now serving six-months home confinement, and says she has had to give up her medical license because she was convicted of felony perjury charges.
In an interview after one network television interview and before another, Dr. Battalino, 53, said she was sorry she had told a lie, even though it was to try to keep an embarrassing sexual relationship private. But if Clinton escapes punishment, she said, she felt she deserved a pardon.
"I think he's getting special treatment because he's the president. He has used his office to get his message across that what he did was no big deal. That wasn't good enough for me. I apologized to the judge that I lied to."
Some supporters of Clinton have suggested that the independent counsel, Kenneth Starr, was using the possibility of a perjury charge as a way to damage Clinton because he opposes his politics. They have said that was an abuse of Starr's powers as a prosecutor, suggesting that if Clinton were a private person he would never be charged with perjury for lying about private sexual matters.
But whether it is an abuse of power or not, other prosecutors in other high-profile cases have sometimes pushed for perjury charges -- to send a signal to the public that lying will be punished. In fact, there is some evidence that the higher the profile of the case, the likelier the perjury charge.
In a Kansas murder case that attracted wide local publicity, the Geary County attorney, Chris E. Biggs, won a perjury conviction of a local minister who prosecutors said had played a role in the killing. The prosecutors charged the minister had lied in a related civil case about whether he had had a sexual relationship with one of the other people charged along with him in the killing.
"It is important," Biggs said in an interview, "to send a message because the whole system depends on people telling the truth under oath." Similarly, in Kentucky, a federal appeals court last month affirmed the perjury conviction of Robert DeZarn, who was the adjutant general of the Kentucky National Guard. He had been charged with perjury for denying during an investigation that he had engaged in improper political fund-raising from subordinates. At the time of the perjury charge, the fund-raising investigation was the subject of extensive news reports in Kentucky.
For many years, some scholars and many practicing lawyers have suggested that lying under oath is epidemic in the courts. But some legal experts say they are even more troubled by what they say is a highly technical approach the courts often take in defining what perjury is. In a 1973 case, Bronston vs. United States, the U.S. Supreme Court laid down a rule for perjury cases that is still the governing law for courts across the country.
Some of Clinton's critics have said the fine distinctions set forth in the Bronston case are at the heart of Clinton's assertion that he did not commit perjury when he denied that he had "sexual relations" as that term was defined in Ms. Jones' sexual harassment lawsuit.
The man at the center of the 1973 case, Samuel Bronston, a movie producer, filed for bankruptcy and was asked in testimony in his bankruptcy case whether he had ever had Swiss bank accounts.
Bronston's answer was: "The company had an account there for about six months, in Zurich." In fact, he once had $180,000 in an account in Geneva that he did not mention.
Bronston was later found guilty of perjury. The Supreme Court reversed the conviction. The high court said that even if Bronston's answers "were shrewdly calculated to evade" it was the lawyer's responsibility to bring the witness "back to the mark, to flush out the whole truth."
Some critics of that ruling say it added momentum to the rampant telling of half-truths in the courts. Robert Blecker, a professor at New York Law School who has written about perjury law, said that judges nationally have concluded that the Supreme Court justices were permitting what most people would consider lying under oath. "They sent a signal," Blecker said, "that you can calculatingly mislead by a statement that is carefully crafted to say one thing when you are really saying something else." |
