Litigation News November 2016 Volume XVII, Number IX December 2016 Few Perjurers Are Prosecuted Impeachment with Although lying under oath is endemic, perjury is Unadjudicated Perjury: rarely prosecuted. When it is, the defendant is usu- ally a politician. The prosecution of Alger Hiss was Deadly Weapon or probably the most famous political perjury prosecu- tion ever in the United States. It made a young anti- Imaginary Beast? communist California Congressman named Richard Nixon a household name.3 The recent perjury by Robert E. Scully, Jr. conviction of Kathleen Kane, the Attorney General Stites & Harbison, PLLC of Pennsylvania, for lying about her role in leaking grand jury testimony to embarrass a political oppo- Impeaching a witness at trial with his prior nent is a modern case in point.4 More memorable untruthfulness under oath is the epitome of cross for those of us of a certain age, President Bill Clinton examination. When you do it, the day is glorious. testified falsely under oath in a judicially supervised When someone does it to your witness, your month deposition in a federal civil case that he did not have is ruined. Yet, this impeachment method is seldom sexual relations with Monica Lewinsky. He was not successfully employed. It is very like Lewis Carroll’s prosecuted for perjury despite being impeached by imaginary Snark, which when hunted could not be the House of Representatives, fined $900,000.00 for 1 caught: “For the Snark was a Boojum, you see.” civil contempt by the presiding federal judge, and Only the unadjudicated perjurer can catch himself having had his Arkansas law license suspended for out on cross because “extrinsic evidence” of the act is five years for the falsehood.5 Absent some such prohibited. Indeed, the term “unadjudicated perjury” public notoriety, however, the ordinary lying wit- is oxymoronic. Perjury is a crime. A crime requires a ness is usually ignored by busy, underfunded, and conviction. A crime that is unadjudicated is no crime politically astute prosecutors. The Department of at all. So impeaching with unadjudicated perjury UNADJUDICATED PERJURY— cont’d on pages 2-9 requires extraordinary talent and more than a bit of luck. The advocate must be like the Snark himself, Table of Contents who when closing in defense of a pig who deserted his sty, “… summed it so well that it came to far more Impeachment with Unadjudicated Perjury: Deadly Weapon or Imaginary Beast? . 1-9 than the Witnesses ever had said!”2 by Robert E. Scully, Jr. Federal Rule of Evidence 609 and Virginia Supreme Court Rule 2:609 explain how criminal con- Letter from the Chair . 2 by Kristan B. Burch victions, including those for perjury or crimen falsi, can be used to impeach. But, since few competent Potential Liability for Repossession Companies, Creditors and State Actors for Unlawful Self-Help trial lawyers ever knowingly call a convicted perjurer Repossessions . 9 as a material trial witness, it is a rare forensic bird. by Jeremy P. White, Esq. and Heryka R. Knoespel, Esq. In 37 years of trial work I have not cross-examined a View from the Bench . 13 single convicted perjurer. by The Honorable Thomas D. Horne (Ret.) Case Summaries . 16 by Robert E. Byrne, Jr. Robert E. Scully, Jr., has over 35 years of trial experience in fed- eral and state courts, focusing his practice on business tort, cor- Litigation Section Board of Governors . 23 porate governance, trust and estates, construction and intellectual property litigation, and is a Member of Stites & Harbison PLLC, New Developments . 24 Alexandria, Va. 1 Litigation News December 2016 Letter from the Chair • Kristan B. Burch This marks the third newsletter published by the Thanks again to Matthews Haynes who served as Litigation Section in 2016. Through the newsletters, co-editor with me for the two prior newsletters issued we attempt to address litigation topics which may be in 2016. of interest to our members, from changes in the proce- The Section is working on two CLE opportunities dural rules to substantive practice-specific issues. To for its members in 2017. First, in the spring 2017, the extent you are interested in submitting an article, the Section plans to sponsor a webinar with Virginia please let us know as we are always looking for addi- CLE which will be offered at a discounted rate to sec- tional articles. tion members. Second, the Section has been selected The Section is pleased to announce that it has to present one of the showcase CLEs at the Annual a new editor for the newsletter. This fall, Jennifer Meeting in June 2017 in Virginia Beach. R. Franklin joined the Board, and she has assumed This year’s Annual Meeting CLE is entitled the editorial duties for the newsletter. Jennifer is “Expert Witnesses: Who are they and what can they a Professor of the Practice at William & Mary Law say?” The Section will present the CLE with the School. Before joining the staff at W&M, Jennifer Construction and Public Contracts Law Section and worked in the Virginia Attorney General’s Office the Joint VSB/VBA ADR Committee. The CLE will as an Assistant Attorney General in the Criminal be on Friday, July 16, 2017 from 8:30 a.m. to 10:00 Law Section and worked as the Habeas Supervisor a.m. More information will be available on the CLE for the Supreme Court of Virginia in the Chief Staff in the coming weeks. Attorney’s Office. We are excited to have Jennifer If you are interested in the participating in the join the Board and take on this new role. Section, please contact one of the Board members for additional information. ✦ Kristan B. Burch is the 2015-17 Chair of the Litigation Section and is a litigation partner at Kaufman & Canoles, Norfolk, VA. Unadjudicated Perjury cont’d from page 1 Virginia Supreme Court Rule 2:608(d): Unadjudicated Perjury Justice U.S. Attorney’s Manual standards for federal If the trial judge makes a threshold perjury prosecutions are high.6 The votes of perjury determination that a reasonable prob- victims do not determine who is elected as the local ability of falsehood exists, any witness Commonwealth’s Attorney. may be questioned about prior specific instances of unadjudicated perjury. Lying Under Oath Is Endemic Extrinsic proof of the unadjudicated There are lots of courtroom liars and false decla- perjury may not be shown.9 ration makers out there. And their lies leave lasting This subsection was designed to preserve the com- traces. Orders granting habeas corpus relief, civil mon law as announced in Lambert v. Commonwealth.10 sanctions, and new criminal trials based on trial wit- The case is instructive. Lee Lambert was con- ness perjury are a treasure trove of judicial findings of victed of threatening to burn down the home of unadjudicated witness perjury. Trial and appellate Karen Hamlette, his former girlfriend, during his judges frustrated by the increasing amounts of obvi- uninvited appearance at her home on Thanksgiving ously false testimony being given in courtrooms are Day 1985. Three dinner guests were present as wit- taking action themselves.7 Judges are entering orders nesses: Jimmy Humes, Luther Washington and Linda and writing opinions calling out lying witnesses, espe- Parks. Humes testified for the prosecution against cially repeat offenders, by name, and describing their Lambert, describing his drunken rage and verbal specific lies under oath, in an effort to shame them threat to torch Hamlette’s home. Linda Parks testi- and their superiors.8 fied in Lambert’s defense. Her testimony conflicted with Hume’s recollection “in various respects.”11 On cross examination the prosecutor “asked her whether 2 Litigation News December 2016 she had not at one time sworn out a warrant for the in a Virginia federal court today he probably could be arrest of Luther Washington for an assault that had asked to admit that he lied in a deposition in a prior never occurred.” She admitted she had sworn falsely; federal case. But it is a close question whether the that she had “turned herself in” to the magistrate cross examiner would be allowed to ask him if Judge who told her she could be charged with perjury; and Wright had issued a written opinion holding him in that she never was actually charged with perjury.12 contempt and sanctioning him $900,000 for lying, and On appeal Lambert argued: “…that unadjudicated if his law license has been suspended as a result.18 perjury, even when admitted by the witness, is not a Is extrinsic evidence of a reliable judicial finding proper method of impeachment” and thus his convic- that the witness lied under oath less probative (or tion should be reversed.13 The Court of Appeals dis- more likely to generate juror confusion) than extrinsic agreed, noting that the general rule prohibiting evi- evidence of prior false accusations by the complaining dence of prior specific acts of untruthfulness prevents witness in a sexual assault case? Virginia Supreme injecting collateral issues into the case and diverting Court Rule 2:608(e) allows extrinsic proof of prior the jury’s attention.14 But when the witness herself false accusations of sexual misconduct. Moreover, admits the prior untruthful act on cross, that policy extrinsic evidence is always admissible to impeach is not implicated and an exception should be made. a witness with her prior inconsistent statement, to “We hold that a witnesses’ credibility may be attacked demonstrate bias, to show motivation to lie, or to on cross examination by inquiry into prior specific demonstrate that a character witness is ignorant instances of unadjudicated acts of perjury.