When  Gideon asked me if I had read  Crime and Consequences lately, I responded that I only read it when I’m having way too much fun and need something to bring me back to a life of misery.  So  he pointed to a delightful post by Bill Otis with the not-at-all-hyperbolic title Lying, More Lying, and Millions Down the Perjury Rathole. 

Otis begins with this bit of enlightenment, too obvious to Bill to require any further explication:

Anyone who has practiced criminal law knows that lying in court is epidemic.  Almost all of it comes from the defense, either the defendant directly or his associates.  This should hardly be a surprise:  Since almost all defendants are factually guilty, their telling the unvarnished truth is the quick route to jail.  Can’t have that!

Let me take a step back for a moment. I have practiced criminal law.  I have done so for a while now, a bit more than thirty years. That ought to qualify me as one of the people Bill is talking about when he writes “anyone who has practiced criminal law.” And behold, we have agreement: Lying in court is epidemic. So far, we’re on the same page.  Then comes the kicker:

Almost all of it comes from the defense, either the defendant directly or his associates.

Well, that may be the shortest version of Kumbaya ever, particularly given the qualification of “his associates,” making it all seem rather mobsterish.  But there’s no need to argue the point of whether defendants lie (they do) or whether “almost all” of the lies come from the defense.  Just as this is too obvious for sourcing by Bill, the falsity of this statement is too obvious for disagreement by the segment of humanity that prefers thought to simplistic bluster. 

The message contained in this first paragraph of Bill’s screed is that truth, from the mindset of someone who believes in prosecution as a religious faith, is whatever they decide it is. In other words, Bill Otis knows the truth.

It’s not that he’s so blind as to believe that cops never lie. Even Bill concedes that it happens.

This is not to say that lying by prosecution witnesses is unheard of.  Just recently, Chief Judge Alex Kozinski of the Ninth Circuit wrote a scalding opinion in Mike v. Ryan [sic] about a police officer who testified, without any corroboration and seemingly falsely, that the defendant had confessed to him.  This is not the only episode of police lying, and such lying is unacceptable under all circumstances (as of course is the vastly more common defense lying).  The system can’t and won’t produce justice on a diet of perjury.

He’s referring to Milke v. Ryan, the case where  Armondo Saldate was able to make up confessions while making sure that there was no extrinsic evidence, like video, to show what really happened, and nobody in the legal system (which includes the prosecutors) seemed at all troubled by it.  Don’t blame Bill for getting the plaintiff’s name wrong.  It must have been brutally painful to spell out four letter. To use all five might have killed him. Can’t have that!

Reality to Bill Otis and his associates is that the outliers, the one in a million examples of a Saldate which only becomes unacceptable lying after some appellate judge says so, no responsibility attaching to the prosecutors who had at least as much information as Judge Alex and likely far more, change nothing. Cops tell the truth and defendants are liars. It’s an article of faith.

Putting aside the more existential question of what is truth, the practical answer is that the truth in a courtroom is whatever the net result says it is.  Defendants who plead guilty have committed the crime, and the allegations against them are true. We know they constitute a legal truth because the defendant pleaded guilty.  Sure, it may be a plea of convenience, but that doesn’t change truth.

Similarly, when a defendant, or his associates (I’m really getting to like that word), testify at hearing or trial, and their testimony conflicts with the testimony of an agent or officer, the anticipated outcome is that the judge or jury is going to accept the word of the guy with a shield.  The set up dictates as much, one being an alleged criminal having an excellent reason to lie in order to avoid the consequences of his heinous conduct, the other being a trusted public servant who has saved kittens from trees.  Who you gonna believe?

And that means the defendant, or his associates, is the liar.  See how that works?  The liar is the person who loses, and since defendants are predominantly the losers, they are predominantly the liars.

Unsurprisingly, Bill has a cure for the epidemic.

Lifflander [in this WSJ article, “The Economic Truth About Lying.”] echoes a suggestion I made for years when I was a federal prosecutor: That lying should not be tolerated as part of the boys-will-be-boys cheating we have come to expect from losing litigants (among whom criminal defendants are near the top of the list).  The way to stop tolerating it is to start prosecuting it.  When word gets around the local defense bar that your client has a really good chance of going to jail for an additional stint for perjury, the court will get  —  guess what!  — less perjury.

Hear that?  It’s the distant sound of Kumbaya.  We’re getting closer to being in sync again. While Bill’s happy thoughts are that word will get around the “local criminal defense bar,” what if that same word spread from precinct to precinct?  While no one will be shocked to learn that Bill came up with this idea when he was a federal prosecutor, his suggestion that the way to “stop tolerating it is to start prosecuting it” is an idea we can all get behind. 

The only thing left to work out is his idea that only guys like Bill and his associates can distinguish the truth from lying.  Anyone who wonders how it is that cops and agents can testify to pretty much anything, tailoring their testimony to fill in the nasty gaps or satisfy legal requirements that take far too much time in the field to manage, or just plain lie about the commission of a crime, without the slightest concern that a prosecutor or judge will challenge their testilying, it’s because there are prosecutors like Bill Otis for whom truth is an article of faith, and defendants are lying liars.