An unreliable memory is no defense against perjury

0 Comments | Insight on the News, Sept 14, 1998 | by Jonathan Moseley

If President Clinton did lie about Monica Lewinsky under oath in a civil lawsuit, will anyone care? Liberal lawyers, bathed under TV studio lights, lecture us that perjury is never prosecuted in civil cases. Administration witnesses can't seem to remember their own names when placed under oath. Is truth in court now irrelevant? Are civil lawsuits little more than "swearing contests" to exchange lies under oath? George Stephanopoulos knowingly insisted to Tim Russert on MSNBC that "it is almost impossible to prosecute anyone for perjury." (Could this be the operating assumption of Clinton's inner circle?) But strangely, Stephanopoulos failed to mention that even he had just been sanctioned by a federal judge for lying under oath in the File-gate case brought by Judicial Watch.

In the real world, perjury is taken seriously. In fact, witnesses who claim they can't remember routinely are held in contempt or thrown in jail.

Janet Reno, while she was Dade County prosecutor in Florida, prosecuted the superintendent of schools for suborning perjury. The superintendent urged a teaching-materials salesman to forget during an informal hearing before a court reporter: "Just don't remember. There's nothing wrong with amnesia." For this, he was convicted. The "serious" underlying offense involved? Diverting plumbing fixtures to his vacation home in Naples, Fla. Ironically, this subornation of perjury was a "set up" in which the book supplier was cooperating with police, who recorded the phone call. (Sound vaguely familiar?)

Law books show many cases where witnesses have been prosecuted or held in contempt for claiming, "I don't recall." So obvious is this that most examples merely are footnotes in larger cases. Curiously, one grand-jury witness even brought a "note from his doctor" to "excuse" him from remembering in a gambling case. The psychiatrist sent along his medical opinion that the defendant had an unreliable memory. (Taking notes, Bill?) But the judge jailed him for contempt anyway after he claimed he could not recall more than 60 times.

Geraldo Rivera claims that perjury is prosecuted only in Mafia or drug cases, challenging guests to give counterexamples. However, U.S. vs. Alo (2nd Circuit, 1971) involved a hearing before the Securities and Exchange Commission about the selling of unregistered shares of stock. The witness, who "forgot" key events, received a criminal conviction for obstruction of justice. In fact, many cases involve simple bankruptcy hearings where a debtor hopes to avoid paying. In U.S. vs. Appel (2nd Circuit, 1913), a debtor could not remember what he had done with withdrawals, offering vague accounts of gambling the money away, unable to remember when, where or with whom. Based partly on his demeanor, the court jailed the witness for 10 days for contempt.

How quickly we forget that the Nixon era involved far more than a break-in. Donald Segretti's "dirty-tricks" campaign against Democratic presidential candidates was investigated by a grand jury. Dwight L. Chapin was just an appointments secretary to Nixon -- officially having no campaign duties. Yet he was alleged to be a covert liaison feeding instructions to Segretti. Chapin was convicted of perjury for answering "I don't recall" when asked whether he had given Segretti specific orders to attack Democrats in the primaries generally, and not just Sen. Ed Muskie.

History is especially poignant here. Chapin's defense? Game-playing with the wording of the question. But the jury believed he had been a little too clever with words, and just sent him to jail.

One Supreme Court case involved a businessman who simply refused to authenticate his business partner's handwriting by claiming he could not recall ever seeing his partner writing. Without direct proof, the judge simply did not believe him and found the witness to be in contempt on the spot. And, only last year, a pastor was prosecuted for receiving disability benefits while working. His sentence was increased for perjury because he testified he could not remember signing the key documents.

So, in TV-land, Bill Clinton and his forgetful friends are found innocent. In the real world of the courtroom, however, they may need to buy a mega-memory course and some Ginsana before they testify under oath again.

Jonathan Moseley is a litigation attorney in Arlington, Va.