Perjury For Filing A Writ Of Habeas Corpus?

Reading between the lines from this KXAN news story, “Man Faces Life In Prison for Perjury”:

A Liberty Hill man faces life in prison for aggravated perjury charges after claiming he was innocent following a plea bargain with the Williamson County District Attorney’s Office.

Prosecutors say Markus Peavy had made false statements in his plea bargain and the writ when claiming he was not guilty of DWI charges. Peavy is two years into a 55-year sentence for a fourth DWI conviction.

 

The defendant must have signed paperwork and been sworn in to give oral testimony at his plea of guilty two years ago – either “in exchange” for an agreed sentence of fifty-five years, or possibly plead unnegotiated, i.e., threw himself on the mercy of the court (not usually a good idea in Wilco).

At some point in the penitentiary, a jail house lawyer either helps him file or files a writ on his behalf, alleging among other things, that he is innocent. A sworn “this is true and correct” affidavit is signed by the defendant and filed with the writ.

Texas Penal Code Section 37.03, Aggravated Perjury:

(a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:

(1) is made during or in connection with an official proceeding; and

(2) is material.

(b) An offense under this section is a felony of the third degree.

Putting aside general notions of decency, fair play, common sense, judicious use of taxpayer monies and simply grading for creativity alone…? Williamson County District Attorney John Bradley gets an A+ on this one.

You walk into court, swear under oath that you are guilty, and then later swear in your writ that you are not. Seems to fit the language if not the intent of the statute.

But wait a minute. How are they going to prove which was the lie? Was he lying the first time, when he said he was guilty? Or the second time, when he said he wasn’t?

Doesn’t matter.

Texas Penal Code Section 37.06 Inconsistent Statements:

An information or indictment for perjury under Section 37.02 or aggravated perjury under Section 37.03 that alleges that the declarant has made statements under oath, both of which cannot be true, need not allege which statement is false. At the trial the prosecution need not prove which statement is false.

Of course, they’ve already extracted the 55 out of him without even going to trial the first time around. What’s going on here? I think his trial defense lawyer, Scott Steele, hits it right on the nose:

"Maybe they are trying to make a point not to engage in the procedure if they do a plea bargain,” said Steele.

Aha! The chilling effect. Stack a few 25 to life sentences on top of a few defendant’s plea bargains, and you’ll put the jail house writ writers out of business (and maybe some appellate criminal defense lawyers too).

I wonder how long Christopher Ochoa is going to get?

[Update: Guilty. 30 years. Stacked.]


 

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Comments (8) Read through and enter the discussion with the form at the end
Windypundit - October 1, 2009 9:32 AM

Hey Jamie, great post, but I think there's an error in it. You said this guy got a 55 year sentence for a 4th DWI, when I'm sure you must have meant 55 weeks. Either that, or you left out that he killed someone last time. 'Cause 55 years for DWI? That would be insane.

Jamie - October 1, 2009 10:41 AM

Windy:

Lol. Or perhaps I should say....

Don't Mess With Texas!

Windypundit - October 1, 2009 11:10 AM

Jesus, we had a famous case here where a drunk driver killed an on-duty fireman who was responding to an emergency, and he only got 13 years. WTF? You guys have a really strong MADD chapter down there?

Jamie - October 1, 2009 3:03 PM

Again, reading between the lines, but it must have been a DWI (class B misdemeanor) punishable by up to 180 days, BUT...

...with at least two prior DWIs, so that makes it a third degree felony, 2 to 10 years, BUT...

...also with two prior pen trips, meaning been to prison, got out, committed new felony, back to prison and then got out and was arrested for DWI...which was at least his thrid felony after two times in prison so...

...three strikes and you're OUT...

NoMoreNoloContendere - October 4, 2009 1:54 PM

Hey Jamie,
the handle says it all, (anti-plea bargain to the bone). We advocate it's abolishment & fight for the right to win full pardons based on actual innocence on behalf of the innocent tricked into changing pleas.

The TPC allows the innocent & guilty person to plead no contest & to file Writs. It's now being used to prevent both from appealing with threats of more prison time. What a joke, & only one person weighed in.

Any attorney / lawyer that investigates & finds his client innocent and trys to convince him to change pleas to no contest should be disbarred. The judge shouldn't have allowed Peavey to change his plea to anything other than Guilty. The adversarial system in motion & the jokes on all of us.

Ordinary Injustice by Ms. Amy Bach www.ordinaryinjustice.com is a must read for those that have anything to do with law. I guess that includes all of us. A good attorney could prove harrassment but Peavy is in the pen, broke & has priors (ain't happening). Thanks for bringing this case to our attention, we will credit where we learned about it in all future actions.

Thomas R. Griffith
PROJECT: Not Guilty
The Griffith Files - 1984 & Beyond

A.W. - October 8, 2009 8:16 AM

As i understand it, it is not just that he lied about being innocent, but he also made false statements about what was in the indictment itself. it said he was charged with driving with a blood alcohol level of X, and he said he was charged with having a blood alcohol level of Y, being less than X. Its one thing to say he is allowed to claim his plea of guilt is false, but you shouldn't be allowed to lie about the indictment.

So its maybe a bit of spin to say this is straight up retaliation for the plea bargain.

Interesting point about the burden of proof on perjury, btw.

esteban rogelio garcia - May 13, 2010 11:37 PM

I work as a legal assistant for a criminal law firm. I am also the author of THE UNITED STATES JAILHOUSE LAWYER'S MANUAL. We don't make deals at our law firm. In fact if prosecutors want to throw perjury charges on any of our clients who wish to pursue post conviction appeals, we automatically throw charges back claiming abstruction of justice! We wrote the book on "The Unconstitutional Plea." Truth of the matter is that prisoners get no action on post conviction just for that simple reason. Another is the ADEPA laws which have a statute of limiations. Anyone wanting more info may contact me at twwalaw@yahoo.com with a phone number.

lDarlene Olden - September 15, 2010 4:39 PM

My sister took aplea bargain on the sole direction of her lawyers Right to appeal was not reserved as promised. Want to file a writ of Habeas Corpus. Good or bad idea

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