Statement at the heart of Todd Henderson perjury case was not proven false, and even if it had been, it was not material to the divorce proceeding in question

Charles Todd Henderson and Yareima Akl

We have shown there were no facts presented at trial to support a conviction of elected Jefferson County District Attorney Charles Todd Henderson. At the heart of the first-degree perjury charge was an exchange in a divorce proceeding, where Henderson was asked if he had ever "spent the night" at the home of campaign worker Yareima Carmen Vallecillos Akl. (Henderson and Akl now are married.) Our review of the proceeding transcript, a private investigator's report, and witness statements at trial show there was no proof Henderson swore falsely when he answered "no."

If there were no facts to support the conviction, what about matters of law? That is simple because there was only one issue of law in the case: Was Henderson's statement, if false, material to the divorce proceeding in question? Under Alabama law, a statement is "material" if it could "have affected the course or outcome of the official proceeding?"

In the Henderson case, it was not proven that he swore falsely, so the material issue should not have come into play. But since a jury wrongly determined that Henderson did swear falsely, let's examine the issue of law -- whether his statement was material. Based on the timing of the divorce lawsuit and statements from Patricia Stephens, judge in the Akl v. Akl divorce case, Henderson's statement was not material.

One troubling question: Why was Stephens' testimony at the Henderson criminal trial so radically different from her statements during the Akl divorce proceeding? We will address that question in a moment.

First, let's look at the timing of the divorce lawsuit -- which the husband (Charbel Akl) filed against the wife (Yareima Akl) -- compared to the timing of the Henderson/Mr. Akl friendship, which developed over the course of his political campaign.

According to press reports, the Akls separated in 2014, and Mr. Akl filed for divorce in May 2015. Was concern about an adulterous relationship between Henderson and Ms. Akl a driving force behind the divorce complaint? It's hard to see how. Evidence at trial showed Henderson and Ms. Akl did not meet, did not know each other, until August 2015 -- three months after the divorce complaint had been filed.

How, then, could a question about adulterous behavior involving Henderson and Ms. Akl -- even though it wasn't asked -- be material to the court proceeding? After all, they didn't know each other when the divorce complaint was filed. It's hard to see how such a question, even one inartfully asked, could be material. Mr. Akl's actions make it clear he wanted a divorce before his wife came to know Henderson.

Another question: Why did Mr. Akl wait roughly 14 months after filing for divorce to pursue surveillance on Henderson and Ms. Akl. If infidelity were an issue in the marriage, why didn't he seek a PI's services before the separation, or at least before filing for divorce?

A PI didn't enter the picture until roughly three months before the 2016 election. Does that mean surveillance was driven more by political concerns, rather than anything related to the divorce case? Was the surveillance ordered, and paid for, by someone other than Mr. Akl?

(Here is a question of legal construction: Alabama law says a statement is material if it "could have affected the outcome or course of the official proceeding?" Does the term "official proceeding," in this case, mean the Akl divorce as a whole or just the hearing in which Henderson is alleged to have sworn falsely? We haven't been able to find case law that answers that question. Either way, it doesn't appear to us that the Henderson statement was material.)

What about the statements of Patricia Stephens, who was judge in the Akl divorce case. A transcript of the hearing in question makes it clear Stephens considered questions about the relationship between Henderson and Ms. Akl to not be material. When Virginia Meigs (attorney for Mr. Akl) started asking off-the-radar questions, Stephens seemed baffled. From the transcript (p. 13):

THE COURT: We're here today to get testimony to divorce these parties and to make a determination on who is going to be the primary custodian. So I'm just not sure where we're going with all of this testimony from Attorney Henderson.

MS. MEIGS: Well, Your Honor, I'm leading up to foundation, and I can't just -- the rules of procedure require that I lay the proper foundation.

THE COURT: For what, though? For their divorce? For child custody? Foundation for what?

MS. MEIGS: The relationship between the two parties, Your Honor.

THE COURT: A relationship -- I'm just not sure where you're going.

Meigs proceeded to ask the "spend the night" question, and Stephens seemed to become more baffled:

THE COURT: We're back on the record. I don't know where Attorney Meigs is going with this line of questioning. If the child wasn't present, I don't care who spent the night at her house on Friday night, Saturday night. I need to know who is a better parent, and we already know that these two folks want a divorce. So I'm just not sure where you're going with this line of questioning.

Here, Stephens all but says she does not consider the line of questioning to be material. She says it's already established that the parties want a divorce -- and if the child was not present, she doesn't care who might have spent the night with whom. Still, the judge gave Meigs some rope:

MS. MEIGS: I would say, Your Honor, that the best interest of the child is at issue today.

THE COURT: It is.

MS. MEIGS: And as a result, we need to evaluate both parents.

THE COURT: Absolutely.

MS. MEIGS: Their character and fitness as a parent. And if one parent is acting in an adulterous way with the child present at times, then --

THE COURT: Ask that question, then. If that's what we need to know, get it out.

Strangely, Meigs never asks the question, even after being told by the judge to ask it. So, we are left with the "spend the night" question, and Stephens flatly stated that she did not care about that, unless the child was present. It appears she did not care because she did not consider the question to be material.

Stephens' testimony at the Henderson trial took a different tone. Why? That is hard to figure, unless someone made it worth her while to change her tone. Why did Henderson's defense attorneys seemingly let her get away with it? That also is hard to figure. From an al.com report about Stephens' trial testimony:

In her testimony, Stephens said that "there would not have been a [guardian ad litem] appointment" for Henderson if she knew of his relationship with Mrs. Akl. Mrs. Akl's attorneys requested Henderson be appointed as GAL, and Stephens granted their order in January 2016. He was removed from the position in May.

According to Stephens, Mr. Akl's attorney Virginia Meigs opposed a GAL being appointed at all because the couple did not have the money to pay for one.

What do we learn here? Stephens thought Henderson should not have been appointed GAL because he and the mother in the divorce case knew each other. But Stephens apparently had no quarrel with Henderson because she acknowledges the mother's attorneys had asked for him to be appointed. And we see no signs that Henderson deceived the court; perhaps Stephens did not ask enough questions. Then we have this from al.com:

Stephens said before appointing Henderson as the Akls' child's GAL, she did not know of any relationship, or acquaintanceship, between Henderson and Mrs. Akl. If she knew that the two knew each other, she would not have appointed him.

"I need a [GAL] who will tell me the good, the bad, and the ugly about each parent," she said.

Stephens said she was in "stunned disbelief" after she learned of Henderson's and Mrs. Akl's relationship at the September 26, 2016 hearing, where he denied staying the night with her.

Again, Stephens says Henderson should not have been appointed GAL in the Akl's divorce. But is it a crime to be an inappropriate choice as GAL? No. Does Stephens point to anything that goes to perjury, the point of the criminal case? No.

Judge Patricia Stephens

What about Stephens' claim that she was in "stunned disbelief" after learning at the Sept. 26 hearing that Henderson and Ms. Akl were friends? According to an account at al.com, Stephens already knew, long before Sept. 26, 2016, that the two were friends. In fact, the judge removed Henderson as GAL because she knew Ms. Akl had campaigned for Henderson.

So, why was Judge Stephens in "stunned disbelief" after learning about a friendship she already knew about? Is this the same judge who, when the "spend the night question" was posed at a hearing, said she didn't care about that, as long as the child was not present?

How is this for an ironic question: Did Judge Stephens, in fact, commit perjury at the criminal trial by claiming to be in "stunned disbelief" over a friendship she already knew about?

It appears she came closer to perjury than Henderson did.


(To be continued)