Appeals question - perjury by state's witness

What is the name of your state (only U.S. law)? Texas

I was convicted of a misdemeanor in July. I have since obtained information that one of the states' key witnesses was lying. The evidence was obtained through the Freedom of Information act. The lie concerned something that effectively shut down a major portion of my planned defense.

I don't know what to do here. Obviously send the information to my court appointed appellate attorney. I have done that weeks ago and he has not responded. Clearly the county attorney is not going to prosecute his own witness.

I'm told that new evidence can't be introduced at the appellate level. Is this true? Unfortunately we didn't uncover this until the request for a new trial had been heard and denied.

Do I have a tort, at least?

I have done Google searches and come up empty. All the case law I can find on the Internet has only covered appeals of people convicted of perjury. If I could become a lawyer over the Internet God knows I would have over the past 3 years. I'm highly highly frustrated that my appeals attorney will not respond to me in any way and I'm about at the end of my rope and considering asking the Court to assign me a new appeals attorney. I'm on social security disability now - this whole ordeal has affected my mental health to such an extent I can no longer work in any capacity. I burned through my entire $50,000 401K going to trial the first time and keeping myself alive until I could get SSDI. I can go to the law library and try to research it but I am not a great legal researcher.

Clearly there have been people convicted of perjury in this state as there is existing case law of people appealing perjury convictions. I'm betting they were all defendants and not states witnesses.

The police also lied in my case, of course, but I didn't even bother trying to prove that. This person is not a police officer, they are another type of city employee, and the lies were so very blatant I figured they would be easy to prove and they were. I looked up "witness immunity" and found this on the LSU law site:

There are two types of witness immunity; immunity against criminal prosecution based on the testimony and immunity against civil liability for harm caused by the testimony. If a witness lies on the stand or in deposition, the witness may be prosecuted for the crime of perjury. All witnesses at all times, irrespective of any immunity claims, are subject to perjury charges if they lie in sworn testimony.

Click to expand...

When are Expert Witnesses Liable for their Malpractice?

This would also answer my question of whether or not I can successfully sue the person and it would seem to indicate I cannot.

Just for the hell of it I am tempted to go to the county attorney and ask that this person be prosecuted, even though I know I won't get satisfaction.

Not that it is germane to this board but I am often close to suicide over this. I had this apparently bizarre and naive belief in our justice system and had no idea people regularly are convicted based on false testimony. I refused all deals based on the fact I am not guilty and I think had I known that all the state's witnesses were going to lie and get away with it scot free I might have chosen differently regardless of the facts of the case.

Trickster said:

I suggest you research perjury laws in your state. I would also perform a typical "Google" search and educate myself on what perjury is. What you find will amaze you. As sad as it sounds, perjury is almost acceptable and police have a name for it. It is called "testilying". Also remember, you may think that a police officer that lies on the witness stand can violate your right to a fair trial, however, you should research this as well. An officer on a witness stand enjoys what is called "witness immunity", which is really nothing special as to the officer because the officer is functioning only as any other witness does in court.

Click to expand...

There may be Tort immunity for such (??), however, perjury, if proven, is not abrogated by any witness immunity laws.

Therefore, the officer is not considered to be acting under a color of law and since a private person cannot violate a constitutional right then you would have to somehow "prove" or "show" that his witness status was actually performed "under color of law".

Click to expand...

Why isn't an officer testifying considered under color of law?

There is law even when an officer is OFF duty and say working security at a Mall they still act under color of law for an arrest, etc.

Also, although rare, a private person/entity can violate a constitutional right.

helpneededtx said:

I'm told that new evidence can't be introduced at the appellate level. Is this true? Unfortunately we didn't uncover this until the request for a new trial had been heard and denied.

Click to expand...

The lie has to be so prejudicial and relevant, it affected the outcome of the verdict.

You need to consult an attorney who specializes in Appellate law.

The lie has to be so prejudicial and relevant, it affected the outcome of the verdict.

Click to expand...

It's worse than that. There will not be a trial to determine if it is a "lie" or not. Otherwise, the appellate courts would be full of people alleging "lie" just to get a second bite at the apple. Dealing with liars is the purpose of cross-examination and direct testimony.

BOR said:

The lie has to be so prejudicial and relevant, it affected the outcome of the verdict.

You need to consult an attorney who specializes in Appellate law.

Click to expand...

I have a court appointed appellate attorney as I stated, however, he is not returning my calls. If he was I would just ask him this stuff.

helpneededtx said:

I have a court appointed appellate attorney as I stated, however, he is not returning my calls. If he was I would just ask him this stuff.

Click to expand...

What I meant was, the "newly discovered evidence" must be so compelling and believable it was a lie, there is basically no room for error.

Appeals are based sometimes on allegded perjurious testimony, such as a witness copping put for a lighter sentence.

A good example is Mark Furhman from the OJ case. He plead guilty to lying on the stand as he was caught on tape saying what he denied on the witness stand.

This is what I meant by compelling proof a witness committed perjury as most defendant's say the witness is lying if they are convicted.

Say for example you have such proof, that may be the a basis for a new trial etc. Your attorney needs to review WHY you think perjury was committed AND if it was prejudicial etc.

BOR said:

What I meant was, the "newly discovered evidence" must be so compelling and believable it was a lie, there is basically no room for error.

Appeals are based sometimes on allegded perjurious testimony, such as a witness copping put for a lighter sentence.

A good example is Mark Furhman from the OJ case. He plead guilty to lying on the stand as he was caught on tape saying what he denied on the witness stand.

This is what I meant by compelling proof a witness committed perjury as most defendant's say the witness is lying if they are convicted.

Say for example you have such proof, that may be the a basis for a new trial etc. Your attorney needs to review WHY you think perjury was committed AND if it was prejudicial etc.

Click to expand...

The proof that I have was obtained via the Freedom of Information act. The witness stated she did not know what certain terms meant and had never heard of them and did not know who at her place of work would use them. This shut down an entire line of questioning that was crucial to my defense. The Freedom of Information documentation revealed that these are indeed common terms in her line of work, that she uses them daily and that using them is part of her job description. There is no way she can't have heard of them, they are routinely used by every employee of that agency.

Again, if my court appointed attorney would respond to me that would be great and I would be delighted to review all this with him.

By the way, not that it matters but I'm beginning to believe most people are convicted based on false testimony.

helpneededtx said:

The proof that I have was obtained via the Freedom of Information act. The witness stated she did not know what certain terms meant and had never heard of them and did not know who at her place of work would use them. This shut down an entire line of questioning that was crucial to my defense. The Freedom of Information documentation revealed that these are indeed common terms in her line of work, that she uses them daily and that using them is part of her job description. There is no way she can't have heard of them, they are routinely used by every employee of that agency.

Click to expand...

I of course was not at the trial, but this does not seem to be a proper basis to assert prejudice to you.

There must be more than a casual connection to her testimony, if proven a lie, and your conviction. How is it relevant she lied about not knowing what terms meant to your conviction?

However, you are right your Attorney needs to review the evidence.

Now take Mark Furhman, if OJ had been convicted, you bet that tape the defense discovered would be a basis for review by a court.

BOR said:

I of course was not at the trial, but this does not seem to be a proper basis to assert prejudice to you.

There must be more than a casual connection to her testimony, if proven a lie, and your conviction. How is it relevant she lied about not knowing what terms meant to your conviction?

However, you are right your Attorney needs to review the evidence.

Click to expand...

Like I said, it prevented a crucial portion of my defense from being presented, as well as some evidence from being admitted. I'm not really comfortable saying more than that on the internet.

Maybe you can tell me how to get my attorney to respond to my calls.

helpneededtx said:

Like I said, it prevented a crucial portion of my defense from being presented, as well as some evidence from being admitted. I'm not really comfortable saying more than that on the internet.

Click to expand...

I understand completely.

Maybe you can tell me how to get my attorney to respond to my calls.

Click to expand...

I am sorry, that I do not know. Hire another and he or she will tell you to send, or they will send, the other attorney a letter of termination as you have retained a new attorney.

I agree with BOR, this is not that helpful to you. In the first place, you are nowhere near "perjury" let alone it being sufficiently prejudicial. In the second, this "newly acquired evidence" *could* have been found before trial. There is no reason why what standard the industry has for using a word was not introduced at trial.

If it really *was* that important (Which I doubt.), you might have a better chance at ineffective assistance of counsel in your first trial as a reason for appeal.


But, to your real question, I'd send a certified letter to the attorney with your questions and status request. Note the deadlines you know of and request a response in a reasonable time.

tranquility said:

I agree with BOR, this is not that helpful to you. In the first place, you are nowhere near "perjury" let alone it being sufficiently prejudicial. In the second, this "newly acquired evidence" *could* have been found before trial. There is no reason why what standard the industry has for using a word was not introduced at trial.

If it really *was* that important (Which I doubt.), you might have a better chance at ineffective assistance of counsel in your first trial as a reason for appeal.


But, to your real question, I'd send a certified letter to the attorney with your questions and status request. Note the deadlines you know of and request a response in a reasonable time.

Click to expand...

The hearing for a new trial was based on ineffective assistance of counsel and selective and invidious persecution so I would expect the appeal to be based on the same things. May also have a Brady violation because in the process of attempting to prove the selective and invidious prosecution my appellate attorney subpoenaed a list of persons arrested for the same crime between 2006-2008, to which the DA responded with a motion to quash. The Brady violation idea came from my attorney, Lord knows I did not know what that was.

Thank you for the suggestion. I was thinking of going to the judge (who is by now quite sick of seeing me in her courtroom after 3 years and petitioning for a new attorney, but I like this idea better).

To:

The hearing for a new trial was based on ineffective assistance of counsel

Click to expand...

This sounds proper and correct.

and selective and invidious persecution so I would expect the appeal to be based on the same things.

Click to expand...

This sounds like the ravings of a crazy person or one who really, really, really wants something. You see, it's not a cause of action while the other is. It is things like this which makes reasonable people think you have no case.

May also have a Brady violation because in the process of attempting to prove the selective and invidious prosecution my appellate attorney subpoenaed a list of persons arrested for the same crime between 2006-2008, to which the DA responded with a motion to quash. The Brady violation idea came from my attorney, Lord knows I did not know what that was.

Click to expand...

Nor do I or anyone else without specific access to the facts. For this, see your attorney.

Thank you for the suggestion. I was thinking of going to the judge (who is by now quite sick of seeing me in her courtroom after 3 years and petitioning for a new attorney, but I like this idea better)

Click to expand...

From this, I think you are pissing up a rope.

Deal with your situation. While you might have something of an appeal in the back of your mind, deal with the situation as I suspect it will not change.