Appellate court refers habeas writ applicant for perjury prosecution

Last week, Grits pointed to a rare pro-Fourth Amendment ruling by the Texas Court of Criminal Appeals in which the court found that "videotape presents indisputable visual evidence contradicting essential portions of [the officer's sworn] testimony." The court also pointed out a gaping flaw in the state's argument that the officers hadn't committed criminal trespass by remaining in the defendant's home without probable cause after she'd asked them to leave: The Legislature didn't create an exception to the criminal trespass law for police officers until 2009, a year after the incident in question. Some commenters wondered why the judges didn't refer the case for prosecution for perjury or criminal trespass, and I'd replied, "To be fair, ... it's not like the judges on the CCA can initiate prosecutions. They don't have that power."

Well, my intuition on that question was wrong. The Texas District and County Attorney's Association User Forum recently highlighted a case where the CCA referred a perjury charge to prosecutors based on alleged lies by a prisoner in a writ of habeas corpus. Reported the Lubbock Avalanche Journal ("Scurry County inmate accused of lying in appeal application," Dec. 13)

The Texas Court of Criminal Appeals ... rejected Michael Wayne Gaither’s application for a writ of habeas corpus and, noting what trial Judge Ernie Armstrong had identified as perjured statements, sent a copy of the ruling to the appropriate prosecutor with a suggestion to “take such action as he may deem appropriate.”

Judge Cathy Cochran wrote for the court: “The act of filing a perjurious application is an affront not just to this court, but to the criminal justice system generally, as well as to all citizens — especially those inmates with potentially meritorious habeas claims.”

So the CCA can refer cases for prosecution, if they choose, presumably just like anyone else who reports a crime. Not sure I've seen that before.

On its face one might infer a double standard looking at the two episodes. But in this instance, the statute of limitations would have run out on potential perjury or criminal trespass charges against police for events that occurred in 2008. So one can't blame the CCA for not referring those particular charges to prosecutors. Going forward, though, Grits will keep an eye out for other, comparable situations where the statute of limitations hasn't expired to see if what's good for the goose is good for the gander.