Thursday, February 8, 2007

When Is It a Crime to Lie?

Posted By on Thu, Feb 8, 2007 at 4:00 AM

I once had a colleague who thought it was clever and funny to ask people, "Do your parents know you’re gay?"

The point, if you can call it that, was that you couldn’t answer this tricky question without falling for the "joke" and incriminating yourself, ha ha.

This is not a column about gays or jokesters. It is about liars and trick questions, and specifically about people who are criminally charged with lying. There seems to be a lot of that going around lately. On the national scene, Scooter Libby, the former chief of staff for Vice President Dick Cheney, is on trial for lying, among other things, and some famous journalists have taken the stand to refute him. A few years ago, Martha Stewart, you may remember, got sent to prison for lying about her stock trades.

On the local scene, former state senator Roscoe Dixon was convicted last year of bribery, but he compounded his problems – and lengthened his sentence by several months – by lying to FBI agents in an 11th-hour interview two weeks before he was indicted. The agents knew he was lying because, unknown to Dixon, they had him on tape. Gotcha.

Memphis Police Officer Orlando Hebron was indicted last month for lying to FBI agents about a drug deal and theft at a Budget Mini-Storage. The agents had Hebron and an undercover informant on tape. But Hebron didn’t know it. So a few days before the trap was about to close, he compounded his problems by lying about something the FBI knew perfectly well was true. So prosecutors tacked on another count of making false statements to U.S. investigators in their indictment. Gotcha.

Former Memphis Board of Education member Michael Hooks Jr. is also charged in a federal indictment with lying. In documents filed this week, attorneys for Hooks and the government argue about whether the lying count in the indictment should be dropped. The offense that Hooks is charged with – participating in a scheme with Tim Willis and Darrell Catron to fraudulently get payments from Shelby County Juvenile Court – happened nearly six years ago. The feds found out about it after Willis and Catron began cooperating with them in 2003. That led to Operation Tennessee Waltz. Of course Hooks didn’t know they were cooperating until it was too late. Gotcha.

Former U.S. attorney Hickman Ewing Jr., who is now retired, says there's a lot of law about lying. In a nutshell, courts have decided there is something called an “exculpatory no” that is not perjury. In other words, defendants can assert their innocence in broad terms but they cannot, say, lie to a grand jury about specific events.

I'm not sure how I feel about all this. From reading the transcript of the tape, it seems like FBI agents were giving Roscoe Dixon a chance to confess. He didn't take it, he went to trial, and he got convicted. He got hammered by both the jury and the sentencing judge for lying. On the one hand, Dixon was guilty. On the other hand, if you're a defendant in a criminal case and you've pleaded innocent, aren't you in the in-for-a-penny-in-for-a-pound position? And could the government not indict people in wholesale lots for lying when they have problems with the more serious issue in the underlying criminal offense?

The Michael Hooks Jr. case will be interesting if it goes to trial. He is represented by Glen Reid, a former federal prosecutor in Memphis 30 years ago. Ewing says he was a very good one, too. In his motion, Reid argues that the alleged Hooks "lie" was immaterial to the underlying offense. According to the indictment, Hooks got an unspecified amount, possibly as little at $1,500, for his participation. It seems his more serious crime was refusing to cooperate with the government, as Willis and Catron did. I would like to hear from readers, especially lawyers, on this. You can post a comment or e-mail me at branston@memphisflyer.com.

And the answer to the question is no.

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