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Friday, October 31, 2014

Here is how the jury likely got it wrong with not-guilty verdicts in the perjury trial of State Rep. Barry Moore

Barry Moore
Confusion about one word, "knowingly," might have caused an Alabama jury yesterday to acquit State Rep. Barry Moore (R-Enterprise) on all four counts against him.

Moore faced two counts of perjury and two counts of providing false statements, in the first trial to grow from a Lee County grand-jury investigation of State House corruption. That Moore was charged with two distinct crimes, and the relevant statutes treat the "knowingly" element in radically different ways, probably created enough confusion to give Moore not-guilty verdicts on all four counts.

In retrospect, prosecutors probably would have been better off to charge Moore only with perjury. That's because the second charge, providing false statements to any matter under investigation, probably caused the confusion that let Moore go free.

If jurors were confused, they were not alone. Some members of the press also appeared to be confused. Consider this from an al.com report on Wednesday about the trial:

Moore testified today that he did not willingly or knowingly tell the grand jury anything that was untrue, a required element for the charges.

We can find only one problem with that sentence--it isn't true; in fact, it's a flatly inaccurate statement of the law.

All reporter Mike Cason had to do was check the indictment to get an accurate read on the law. Apparently he didn't do that. The indictment correctly states that "knowingly" was an element of the charge under Counts One and Three (providing false statements), but it was not an element under Counts Two and Four (perjury).

A quick look at the relevant statutes shows a difference in the crimes. This is from the key portion of Code of Alabama 36-15-62.1:

Section 36-15-62.1

Providing false statements relating to any matter under investigation; penalties.

(a) Any person who knowingly commits any of the following in any matter under investigation by the Attorney General, or a prosecutor or investigator of his or her office, upon conviction shall be guilty of a Class C felony.

You can see that the word "knowingly" plays a prominent role in describing the offense. Now. let's take a look at the key section of Code of 13A-10-101:

Section 13A-10-101

Perjury in the first degree.

(a) A person commits the crime of perjury in the first degree when in any official proceeding he swears falsely and his false statement is material to the proceeding in which it is made.

(b) Perjury in the first degree is a Class C felony.

You can see that the word "knowingly," contrary to what al.com reported, is not an element of perjury. The offense is straightforward--you make a materially false statement in an official proceeding, and you have committed perjury. It doesn't matter whether the statement was knowingly
made or not.

That's important because Moore admitted on the stand that he gave at least one answer that was false related to a phone call with Josh Pipken, who wound up being Moore's primary opponent. From the al.com report:

Prosecutors say the recordings show that Moore was not truthful with the grand jury. Defense attorneys disputed that.

Moore acknowledged during his testimony today that one answer he gave during his testimony was wrong, but said it was because he didn't fully remember the phone call with Pipkin from seven months earlier.

Moore then proceeded to tell the jury that he did not willingly or knowingly tell the grand jury anything that was untrue. His reference to the grand jury means he was referring specifically to the perjury counts; the providing false statements counts involve statements made to investigators for the attorney general's office.

In other words, Moore told jurors that he did not knowingly commit perjury. But "knowingly" is not an element of the offense; it only applies to the false statements counts. And Moore's own words show he did make a materially false statement in an official proceeding.

What does it all mean? Moore probably presented a valid defense to the false statements charges, and the not-guilty verdicts on those might be proper. But based on our review of the relevant law and press reports on this week's trial, Moore offered no legitimate defense to the perjury charges. In fact, he appears he admitted to committing perjury in at least one instance.


Anonymous said...

America's system of courts ended already, and that happened actually when Nixon decided to not back the money anymore with gold. Please, how can a system called "Justice" be as unjust as the system is? Well, when those that propose to be judges and are very clear about how the fiat exchange operates - yes the flesh trade-exchange is what kept the USA going. Just ask how much you actually made the State of AL, in the time you spent jailed.

Now the system is collapsing, too many are incarcerated in the USA, China and Russia aren't investing in countries that have higher levels of people in prison.

News in the USA is owned by the same that own the systems, all almost all the time.

The global truth is silent in the place called "America".

Courts, news, and name a system in the American society that wasn't already doomed when the money wasn't other than a crime that was to defraud the whole planet earth.

Come on Schnauzer, get real about LEGAL TENDER, that operates earth to this day and isn't going to change until eons maybe.

Best prepare the Alabama "family" of all that don't claim to be part of the "crime family".

Anonymous said...

Actually, you are misreading the law on perjury. The definition of SWEARS FALSELY and FALSE SWEARING is provided in section 13A-10-100. The language used states "which the declarant does not believe to be true." This definition requires that the person would have to know the statement is probably not true. Whether or not he believed his statements were true or untrue would still be the jury's call.

legalschnauzer said...

Don't agree with you, @8:22. Here's the full definition of swears falsely or false swearing:

SWEARS FALSELY and FALSE SWEARING. The making of a false statement under oath required or authorized by law, or the swearing or affirming the truth of such statement previously made, which the declarant does not believe to be true.

As you can see, it's a two-part test, with the word "or" in between, meaning either circumstance amounts to false swearing. As you can see, "knowingly" clearly is not mentioned in part one, and it isn't mentioned in part two--although you read it into what the definition actually says.

I agree that it's the jury's call, but my post says that Moore's claim, that he did not "willingly or knowingly" tell the grand jury anything that was false, is not a valid defense under the statute as written--and that is true.

As for the jury's call, Moore admitted to one instance of making one untrue statement under oath, so he failed your "declarant does not believe to be true" test." He admited that he knew it wasn't true.

You and I probably can agree that it would be interesting to know what the jury instructions were on this.

As for me, I stand by my point that the prosecution probably would have been better to leave out the "false statements" charges. They just muddied the water, and without them, I suspect the prosecution gets a conviction on perjury.

Anonymous said...

It's not really a two part test as you've read it. The first part is about a statement that is currently made under oath, ie: you are in court making the statement for the first time and the second part is that you are affirming that something you said in the past is true. They are merely covering all bases, past and present. The phrase which the declarant does not believe to be true" is referring to both past and present statements. If he does not believe them to be wrong when he says them, then no crime was committed. However, it is possible to later find out you were mistaken and, as long as he does not later swear or affirm the truth of such statement previously made he still hasn't violated this code. The fact that he made an untrue statement that at the time he believed to be true (present statement) and in a subsequent hearing admitted he made a mistake and recanted the statement (past statement) is a good example of the reason the "or" is in the code.

I stand by my reading of the law.

Robby Scott Hill said...

My independent viewpoint is that the jury was not confused at all. Like an increasing number of jurors, this jury was a fully informed jury. It was fully informed of its constitutional right to use jury nullification to ignore the law & give the circuit judge the middle finger by appointing itself judge of the law as well as the facts to do the right thing which was to not get caught up in an internal power struggle of the Republican Party by letting this man walk.

Anonymous said...

2014 Alabama Governor: Bentley vs. Griffith
61% Robert Bentley

R Hammond said...

You generally assume that jurys in the state....are made up of fairly intelligent folks. I wouldn't go that far and suggest that. You could easily end up in a court case, with five absolute idiots within the jury, who can't even comprehend simple instructions on how to make a cake. Convicting a guy? It's practically impossible.