Perjury in the Courtroom, Blog Posting Revisited

A while back, I wrote a Blog entry about Perjury and its effect upon the judicial process.

I received an inquiry from a colleague regarding the topic. Here is the inquiry and my response:

Larry:

I read with great interest your article on perjury. I have a clear case in Family Court documented by a court transcript, deposition, and another court transcript. Is there anything my client can do? Civilly or criminally? Any comments would be appreciated.

Ron Poliquin, Esquire


Good Morning Ron,

I have re-read my article. It is sometimes interesting to read things that we have written in the past. I guess I was pretty peeved that day. But it is a serious problem and I stand by my pledge.

The primary technical difficulty as I see it is the proof issue.... proving that a person knew it was a lie when the person made the testimony.

The next hurdle is to make sure that the prosecution of this crime does not take the form of, or appear to take the form of, a continuation of the underlying litigation... either as a sour grapes response to losing or as a retribution against the other party after a win.

If these two hurdles can be overcome, I believe that the appropriate course of action is to present it to the Attorney General's office for prosecution. If the defendant is convicted of perjury, I might consider going back into the civil litigation with that ammunition for a correction or modification of the underlying civil decision.... if appropriate.

Keep in mind that it is an ethical violation to utilize the threat of criminal prosecution as leverage in a civil matter. So the hand-it-off to the prosecutor's office (with evidence) but without discussing this with the offender, seems to me to be the appropriate and prudent method.

Home Buyer Tip

If you are purchasing land with your fiance, retitle the deed after the marriage.

This is a fairly inexpensive way to avoid a major hassle in probate. Be sure and do this with a licensed attorney however, or you will be compounding the hassle.

So many times I have heard people say, "you don't need a lawyer for this, just fill out a form and file it." I am here to tell you, there is no surer way to make xtra money for the attorneys than prepare your own legal documents. It is being penny wise and dollar foolish.

Former Teammates Settle Before Heading to Court

As a long-suffering Redskins fan, I felt compelled to post this story
from the Washington Post.

When superstar running back Clinton Portis came to the Redskins from the Denver Broncos in 2004, he wanted to keep his old number. Unfortunately, jersey number 26 was already taken by Washington player Ifeanyi Ohalete. When Ohalete refused to give up his number to his new teammate, Portis suggested that they set up a charity boxing match wherein the winner gets number 26. After Ohalete turned down the boxing match, a simple contract was drawn up, selling the number to Portis for $40,000 to be paid out over the course of the upcoming season. Portis made the first payment, but when Ohalete was cut from the team, Portis stopped making payments because he figured that without Ohalete on the team, the number would have been his eventually anyway.

Well, Ohalete didn't see it that way. He filed a breach of contract suit in Maryland for the balance of the contract price. Finally the case was settled just hours before the scheduled trial for $18,000 ($2,000 less than the balance due under the contract).

It's great that they were able to settle the case. Now, if only the 'Skins could make the playoffs...

Alderman Confirmed and Sworn

Newark Aldermans Court was the first (ever) Aldermans Court in Delaware to have its judges nominated by the Governor (The Honorable Ruth Ann Minner) and confirmed by the Delaware Senate (no filibuster needed).

This past Monday night at the Newark City Council meeting, Alderman Anthony Forcina and Deputy Alderman Larry D. Sullivan were sworn in by Mayor Vance Funk under their new commissions as State approved judicial officers.

Wendy's Finger Has Been Traced

According to the Associated Press on Yahoo! News, after several weeks of investigation, the finger that was reported to be in the Wendy's chili has finally been traced to a man who was in an industrial accident and gave it to the husband of Ayala who allegedly planted it in a scam to get money. Investigators found at least 13 cases in which Ayala has filed claims her or her children's name. Surrounding Wendy's in the California area, at the time of the incident reported 60 to 70 percent loss in business and is currently still at 20 percent loss.


By Craig J. Springer

Update on Expungement

In response to my entry of 4/11/05 about expungement, we received an email from John Sandy, Esquire of Stumpf Vickers & Sandy, P.A. in Georgetown, Delaware. He notes that when there is a previous conviction, it is still sometimes possible to get a new criminal charge expunged. He says in part:

4373 (a) states that the existence of the previous conviction is "prima facie" evidence that dissemination of information relating to the arrest to be expunged does not constitute a manifest injustice to the petitioner. Prima facie evidence is conclusive on the issue unless rebutted.

In my own practice, on several occasions, when the previous conviction was remote in time and/or considerably different in degree or nature, I have been able to convince the DOJ not to oppose the motion or the court of the "manifest injustice" over the State's objection. Within the past year I had a young lady turned down for a job with the Dept. of Corrections (I didn't think that they turned anyone down) on the basis of an arrest for Assault 3rd on her boyfriend. That charge was subsequently dismissed but because she had had an Under Age Consumption on her record 3 years earlier the DOJ opposed the motion. When I produced the letter from DOC stating that it was the assault arrest that kept her from being hired and pointed out that this was not a plea bargain where she pled to the alcohol charge in return for a dismissal of the assault, the DOJ withdrew its objection (but noted the previous conviction in its response to the court). The court granted the motion knowing that she had previously been convicted.

Another point that was not addressed in my previous entry, but that Mr. Sandy brought to my attention is that when a person is involuntarily committed to a mental hospital in Delaware, it is noted on that person's record and can be viewed by anyone with access to the criminal record. However, these records can also be expunged. Mr. Sandy writes:

I have twice been successful in having the "Mental Patient" notation removed (sealed) from the SBI record. In both cases SBI itself vehemently opposed and the DOJ took up their position. The cases, about 5 years apart, were nearly identical. Both involved young women applying for jobs that required a background check. As I recollect, they were both applying for teaching positions. At the time of their petitions both were in their mid twenties. In each case, when they were 15 or 16, they threatened (but did not attempt) suicide over breakups with boyfriends. In both cases, alarmed parents enlisted the aid of the State Police and 72 hour commitments were procured. Both girls were released before the 72 hours elapsed and neither ever had any other problem. Clearly, a background check would have been severely detrimental to their teaching careers. A reading of the statue clearly stated that "adult" commitments were to be reported. Despite the fact that the records should never have been made available to SBI the State opposed sealing the record. In both cases the court (Graves in one and Bradley in the other) granted the motion. I am surprised that some of the mental health advocates have not taken up the issue of the inclusion of this information in the SBI records.

Thank you Mr. Sandy for your insights.

Delaware Money School

Check out the Delaware Money School! It's an organization that offers free seminars on a variety of subjects, from personal finances to planning your own business. A valuable local resource, for sure.