“Looking back” will feature reprints of articles that Jeff previously wrote while a columnist at The Westchester Guardian, which encompass topics that are applicable here in CA as well as across the country and not simply applicable to NY.
by Jeffrey Deskovic
On December 23, 2009, I was a guest on the WVOX radio show “Don’t Worry Murray”. It is a weekly show in which various items that have recently made the news in the area of criminal justice are reviewed and commented on by defense attorney Murray Richman. From time to time I have been invited to appear on the show to offer my perspective on various issues covered by Richman.
From an audience perspective, perhaps the reason my views are considered relevant is because I am both a criminal justice advocate whose mission is to battle against wrongful convictions, while at the same time having been wrongfully convicted, incarcerated, and exonerated after many years. For my part, I enjoy going on the show because it is an additional way to help raise awareness about wrongful convictions.
In my last appearance, which was hosted by Murray’s daughter, who is also a defense attorney sitting in for her father, we discussed the issue of whether people who file false allegations should be charged with perjury. Thus the inspiration for this week’s column.
There were several cases that we discussed, as an entree into the general subject. The first was a case which I previously wrote about several weeks ago in The Guardian, in an article entitled “When People File False Police Reports.” In that case, four men were falsely charged with raping a Hofstra college coed.
After a cell phone video emerged showing “the victim” having consensual sex with several men in a dorm bathroom, she changed her story, admitting that the sex was consensual. Another case that
was discussed was the William McCaffrey case. McCaffrey was charged with rape and served three years in prison prior to being cleared. DNA evidence showed that he was innocent, and the victim, Biurny Peguero Gonzalez, has admitted that she falsely implicated McCaffrey in order to get other people to feel sorry for her. She has since been charged with perjury, pled guilty, and as of this writing is awaiting sentencing.
Rather than there being one, rigid, across the board answer as to whether people who file false charges should be charged with perjury, I instead believe that it should depend on the facts and circumstances.
Diminished Capacity
I have read about cases in which the person who filed false allegations had, in one way or another, a diminished capacity. Examples includes people who are retarded, or who have other mental problems, were minors at the time and were pressured, coerced, or partially brainwashed by either parents, child psychologists, or child protective service officials, to falsely implicate and accuse others of rape or child molestation.
It is easy to see how that could happen. It is natural for children to listen to their parents, or other authority figures. It has come out in some cases that some child psychologists, or child protective service employees, either motivated by overzealousness, or operating deliberately, have induced children to falsely implicate others.
With respect to people who are retarded or may have mental illness, it is established that such people, as a means of coping with their deficiencies, frequently resort to attempting to please authority figures, and can be made to give false accounts.
Therefore, with respect to people who fall into this category, I do not believe that such individuals should be charged. I do believe, however, that parents or other officials, in instances where it is clear that their actions are deliberate in bringing about false charges, as opposed to simply being supportive, should be charged. After all, in cases where the victim winds up being incarcerated, and bears the stigma, quite likely for life, of having been arrested for rape, or molestation, or some other crime, the impact is incalculable.
People Who Decide To Drop Charges
There is a separate class of people who, after filing charges, decide to drop the charges. In those instances, prosecutors sometimes can threaten the complainant with being arrested for perjury if they don’t go forward with the charges, however true or false they may be.
There are a variety of reasons why a person who has filed may decide that they don’t want to go ahead with the charges. It is not necessarily that they have falsely implicated someone and now have second thoughts. There are some instances in which rape victims may feel a sense a shame, and they don’t want to “advertise to the world that they have been raped”, and therefore decide to drop the charges.
In instances involving other crimes, the person that committed the crime maybe a family member or a friend, and although the victim initially wanted the person prosecuted, they have decided that they don’t want the person to go to jail. It could be that after making an identification, they are now not quite so sure about their recollection, and don’t want to risk an innocent person’s going to jail.
Therefore, because of the lack of clarity with respect to the reason why a victim wishes to drop the charges, I am against prosecution of such people, as well as prosecutors threatening witnesses.
Maliciousness
However, in situations such as the McCaffrey case, or the Nassau County case referenced above, I believe that the person who purposely filed false charges should be arrested and charged with perjury. Penal law offenses exist in order to protect society, by criminalizing and imposing a penalty when people harm others. Just as we need to be protected from bodily harm and the loss of our property, so, too, do we need to be protected from false charges. I think that it is important that something be in place to make those who would falsely implicate others, hesitate to do so. That can only be accomplished by the punishment of perjurers.
Punishing Those Who Betray Their Public Trust In Law Enforcement
While I favor prosecuting civilians who purposely file false charges, I also favor prosecuting those in law enforcement who betray public trust by committing perjury in criminal cases. One example includes police officers who commit perjury by leaving things out of their testimony, or by changing details. This practice has gained enough currency that there is a name that has been given to it: “Testilying”.
Another example are experts who fabricate lab reports or findings, and thus have not only possibly facilitated a wrongful conviction, but also infected perhaps hundreds or thousands of cases, thus rendering those verdicts questionable.
Still another example are instances where a person receives a reward in exchange for testifying, whether it involves the dropping of charges, or receiving a reduced sentence. This is known as incentivized testimony.
Unfortunately, in all of the above instances, the guilty party has faced perjury charges in very few instances.
An Update
In a more recent article in The Guardian, in an article entitled “Wrongful Convictions Just Keep Coming Out, Part 11”, I wrote about the case of Donald Gates, who had served 28 years in prison for a rape and murder that he did not commit. In that issue, I mentioned that although he had been released, he had not been formally exonerated because prosecutors were waiting on a third confirming DNA test.
I am pleased to give an update: Instead of conducting that test, they filed a motion to exonerate Gates. As of December 18, 2009, Gates has been formally exonerated.
According to The Washington Post, Judge Ugast, in formalizingthe exoneration, said “The Court finds by clear and convincing evidence that Mister Gates is actually innocent.” Additionally, prosecutors acknowledged that in 1997, they became aware of 13 discredited FBI lab analysts.
In another case, on December 18, 2009, Philip Cannon was released after serving 10 years for a triple murder. His conviction was overturned because it was based upon bullet lead analysis, which has been exposed as junk science. Prosecutors were unable to retry him because the Oregon police destroyed the physical evidence in the case, in contravention of the Oregon State Law.
As I have written about before, bullet lead analysis was used in thousands of cases to help convict people, and when this is combined with evidence preservation failure, there is no way to ascertain whether one is factually innocent or guilty, although, based upon an important legal principle, they should be presumed innocent, the same as any other citizen would be considered if they have not been convicted.
This case should highlight the need for an evidence preservation law in jurisdictions, such as New York, that do not presently have one, and for police and other law enforcement personnel to follow the law when it does exist.
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