Wednesday, December 12, 2012

Anatomy of a Murder: Case Studies

So far in this plodding series of unknown length, I believe I have established that, under Texas law, anyone who commits a felony material to an execution is guilty of murder. In this post, I will discuss the dearth of cases involving murder by falsification. I find only two worthy of mention. The first is from 18th century England. I found it in "Murder by Perjury", by John C. Hogan.
The only instance in modern times of a court in England passing on this subject is The King v. Macdaniel and Others. The facts in this case were as follows: By statute, the government had offered to reward, with forty pounds, any person who would convict a highway robber. Mary Jones (a widow), Stephen Macdaniel, John Berry, and Thomas Cooper conspired against an innocent person, Joshua Kidden, to recover this reward. They arranged an indictment of Kidden for having robbed Mary Jones on the highway, a crime he never committed.
Mary swore in court positively as to the person of the prisoner, equally positively as to the circumstances of the fictitious robbery, and she was confirmed in all this by the false testimony of John Berry. After Kidden's conviction and execution as a highway robber, the reward was collected and divided among the conspirators. 
Sometime later, the Constable of Blackheath arrested one Blee on suspicion of theft, and this led to the discovery of the conspiracy and contrivance to gain' the reward. Subsequently, Stephen Macdaniel, John Berry, and Mary Jones were indicted before Mr. Justice Foster at the Old Bailey, June session 1756, "for the wilful murder of Joshua Kidden, in maliciously causing him to be unjustly apprehended, falsely accused, tried, convicted, and executed, well knowing him to be innocent of the fact laid to his charge ..."
Both accounts of the case say that the defendants were convicted of this offense, but the judgment was respited, and that the Attorney General, Sir Robert Henley, refused to argue the point of law; not necessarily, though, because he believed it was not good law, but for other reasons, which are not clearly stated in any of the sources.
The referenced article gives the only summary, and hence the best summary, I found regarding the history of murder by perjury. The history in that article necessarily ends at 1961, since that was the year in which "Murder by Perjury" was published. The article noted that, at least then, murder by perjury was specified by Article 309 of the Texas Penal Code as a crime punishable by death.
In the United States, Texas, as well as California has a statute that punishes murder by perjury with death. This statute was commented upon in the case of Smith v. State, where the defendant sought to have a witness declared incompetent to testify against him because she was not old enough to incur the death penalty for false testimony. The court said that in order to make this position tenable, the conviction would have to have been for the death penalty, not for imprisonment.
The statute requires ... not only that the death penalty might be inflicted, ... and that the witness testified to some material fact bringing about or tending to bring about that conviction. ... Tex. Crim. App. 273, 164 S.W. 838 (1913)
I found a copy of the 1925 Texas Penal Code, and there it is:
Art. [311][208][195] Perjury in capital case.-
When the perjury is committed on a trial of a capital felony, and the person guilty of such perjury has, on the trial of such felony, sworn falsely to a material fact tending to produce conviction, and the person so accused of the capital felony is convicted and suffers the penalty of death, the punishment of the perjury so committed shall be death.
So the law was on the books prior to 1913, in the year 1925, and as late as 1961. It's not there now. Note, however, that I have not been arguing there is a specific crime of Murder by Falsification in Texas, and I certainly haven't been arguing that such a crime would be a capital murder. I have been arguing instead that Murder by Falsification is just as much murder as is Murder by Stabbing, or Murder by Poison. None of those specific types of murder are defined specifically by the Texas Penal Code. Each is simply murder. Each could be capital murder if one of many special conditions was met, such as the killing of multiple people during the same event.

The second case study confirms that a perjurer in a Texas capital murder case can be charged with murder. I refer you to the Houston Chronicle article "'Murder by Perjury' in the Cantu Case?".
Juan Moreno ... was shot nine times and left for dead in a 1984 robbery in San Antonio. A companion of Moreno was shot to death during the robbery. 
Then, Moreno says, he was pressured by police into identifying the wrong man after repeatedly saying it wasn't him. 
That man, Ruben Cantu, was executed based on Moreno's testimony in a 1985 trial. 
Now Bexar County District Attorney Susan Reed says if her investigation supports Moreno's contention that the wrong man was executed, she may file charges against him. 
For perjury? No. The three-year statute of limitations ran out a long time ago. 
For the murder of Ruben Cantu. ... "A man has been executed because of that lie. That is pretty serious stuff. There are consequences for that. ... If there were not consequences, then the system would allow itself to be attacked. The integrity of the judicial system is all based on truth, most importantly presenting the truth to the jury." 
... Ironically, the statute under which Reed says she would likely charge murder is the same one used here in Harris County to charge the Pasadena school bus driver for murder for accidentally running over a 9-year-old girl. Under that statute, it is felony murder when, in the course of committing another felony (perjury, in this case) a person commits "an act clearly dangerous to human life that causes the death of an individual."
For considerably more detail on the pliable witness that is Juan Moreno, see my post The Case of Ruben Cantu. I'll provide an early and a late paragraph from that post to bring you up to speed quickly.
Two men were shot and robbed while guarding a house under construction. One of the victims, Juan Moreno, survived and identified Ruben Cantu as one of the two men who robbed and shot them. Moreno made that identification only after four previous interviews in which he was unable or unwilling to identify Cantu. Based exclusively on Moreno's testimony, and despite an alibi witness, Cantu was convicted and executed. ... 
I know now that Juan Moreno was and is a malleable witness. The Bexar County DA must have known that as well, yet they used him as the sole basis for the conviction and execution of Ruben Cantu. After the execution, after Juan Moreno had recanted his testimony, the new Bexar County DA dismissed Juan Moreno simply because he changed his story. Their confidence or skepticism in Juan Moreno is as malleable as was his testimony.
Whether or nor Cantu was guilty, it was an absolutely a shaky conviction then, and is even more so today. It's a conviction based almost exclusively on someone who, according the State, lied before trial, told the truth at trial, and lied after trial. That doesn't inspire confidence in the Texas' justice system.

Of interest to me now is that the case has returned to my consciousness after the wrongful conviction of Preston Hughes. It's back because Bexar County DA Susan Reed threatened Moreno with murder if he stood by his recantation, if he insisted he perjured himself at Cantu's trial.

When I first wrote of Cantu, I was unaware that he had been threatened with a murder charge. I learned of it only recently, only after concluding independently that someone committing a felony in furtherance of an execution is guilty of murder. I think the law is clear on the point, and I'm glad DA Susan Reed agrees with me.

I doubt of course that DA Reed ever intended to charge Moreno with murder. The intent of the threat was to convince Moreno to recant his recantation. As best I can tell, Moreno has not recanted his recantation. As best I can tell, Moreno still stands by his claim that he perjured himself. However, rather than charge him with murder, as she threatened, DA Reed simply concludes Moreno is lying now.

Still she makes my point for me. In Texas, one who commits a felony in furtherance of an execution is guilty of murder. And, for what it's worth, there is no statute of limitations on that crime, despite the claims of one commentor.


Anonymous said...

From what I read, the Texas statute on murder by perjury was removed when the Supreme Court temporarily struck down the death penalty in the USA in general. Presumably it simply wasn't included when new legislation was written because they decided not to include that particular circumstance as making the case automatically a capital case. But as you say in the article, it may or may not be capital depending on other circumstances. Nonetheless it would be murder just the same.

Anonymous said...

Also, in theory there shouldn't be a dearth of cases like this since apparently it is common for police and others to commit perjury in order to obtain convictions, according to to the testimony of Alan M. Dershowitz to the House of Representatives Judiciary Committee on December 1, 1998. He says there, "My interest in the corrosive effects of perjury began in the early 1970s when I represented — on a pro bono basis — a young man who was both a member of and a government informer against the Jewish Defense League. He was accused of making a bomb that caused the death of a woman, but he swore that a particular policeman, who had been assigned to be his handler, had made him certain promises in exchange for his information. The policeman categorically denied making any promises, but my client had — unbeknownst to the policeman — surreptitiously taped many of his conversations with the policeman. The tapes proved beyond any doubt that the policeman had committed repeated perjury, and all charges were dropped against my client. But the policeman was never charged with perjury. Instead he was promoted." He goes on to say that such perjury is extremely common and even has a slang name used by the police.

So the only reason for the dearth of cases is that no one wants to admit the problems with the justice system and for example that innocent people are sometimes executed.

That is why it is important to pursue cases like this. If someone is charged with murder by perjury such murder will likely become much less common.

tsj said...

Thanks for the info. Good comments.

Anonymous said...

So there hasn't been a case where someone has actualy been charged with murder for perjuring themselves on the witness stand in a capital case? The California issue was dealing with the punishment for perjury, and the TX case was only a conjecture on the DAs part and never carried out.

TX should re-add the earlier code to make it more explicit.

And last, I disagree with the anonymous. It is a crime on the books, so it's not like the behavior is legal. Perjury is illegal, but is usually a harder case to prove, but has been done. The issue in this situation is the time frame.


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