If Prosecutors Wish To Try Eric Echols, they Will Have to Suborn Perjury

[Update, Tuesday June 1, 8:05 AM]: The incomparable Dalton Roberts has weighed in on the aftermath of the Tonya Craft trial and, not surprisingly, has the best line that anyone has given on the behavior of the prosecutors:

To return them (Arnt and Gregor) to the holy arms of sanity, let them go back and read the day-to-day blogs of their own neighbors in north Georgia that they "serve," using the word loosely in regard to this case. As a former elected official, I will flatly state that if a comparable number of people blogged their disgust with me for weeks and weeks, and were horrified at my actions, I would move to Montana and graze with the buffalo.

[End Update]

Here we are on June 1, with the Tonya Craft acquittal three weeks behind us, yet Buzz Franklin's office continues to insist that it is going to try private investigator Eric Echols on three felony counts of "interfering with a witness." As I noted a while back, the prosecutors have to be "stuck on stupid" to continue this charade.

There are two questions one must answer regarding this continued prosecutorial action. The first is this: Why in the world is Buzz Franklin continuing to insist that this trial take place? Second, we ask: What would be the prosecution strategy in order to try to convince a jury to vote a conviction?

I'm not sure about the answer to the first question, as rational people would think that a prosecutor should be going after real criminals, and there are a few of those running about the Lookout Mountain Judicial Circuit. (Unfortunately, as I shall point out, some of those criminals are in the prosecutor's office, but it is doubtful that these dangerous and desperate outlaws will find themselves in the dock.)

My sense is that prosecutors Len Gregor and Chris Arnt, after suffering a major league smackdown against Tonya Craft, are wanting to "prove" to people that they had a legitimate case after all and that trying and convicting Mr. Echols would enable for them to salvage some wounded pride. To drop the charges now, in their minds, would be tantamount to admitting they were wrong, and if there is one thing that anyone in Franklin's office is incapable of doing, it is admission of wrongdoing.

I also believe that Franklin believes that his minions can appeal to the racial prejudices of what most likely would be an all-white jury, although Gregor's false assertion during the trial that TONYA CRAFT WAS SLEEPING WITH A BLACK MAN (Mr. Echols) did not exactly resonate with jurors. Nonetheless, Franklin and company seem to believe that two times is the charm.

Whatever the reason for pursuing this abusive and wrongful prosecution, the LMJC prosecution team must depend upon a strategy, and the facts of the case offer slim pickings. Nonetheless, it might be interesting to see what rabbit Gregor and his friends might try to pull out of their hats.

With Tonya Craft, prosecutors were able to get "judge" Brian House to leave out reams of exculpatory evidence in order to protect their witnesses, who were committing perjury left and right. One person giving perjured testimony was Jerry McDonald, who told jurors that he had not spoken to Mr. Echols prior to the trial.

Why was this perjury? Indeed, Mr. Echols had spoken to McDonald the previous year and, in fact, had recorded the two-hour session. To make matters worse, prosecutors Arnt and Gregor had a recording of that conversation in their files. In other words, they knew about the conversation and also knew its contents, yet I would guarantee readers that McDonald's testimony was given at the prosecution's directive.

In other words, I am saying that prosecutors knowingly suborned untrue testimony, which is illegal. Lest readers doubt what I am saying, read Rule 3.3 of the Georgia State Bar, entitled "Candor Toward the Tribunal":

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(d) In an ex parte proceeding, other than grand jury proceedings, a lawyer shall inform the tribunal of all material facts known to the lawyer that the lawyer reasonably believes are necessary to enable the tribunal to make an informed decision, whether or not the facts are adverse.

The maximum penalty for a violation of this Rule is disbarment.

When Arnt and Gregor "allegedly" (though I doubt McDonald came up with his testimony on his own) told McDonald to claim he had not spoken to Mr. Echols, they allegedly violated Rule 3.3. Furthermore, if they wish to put Mr. Echols on trial, they have painted themselves into such a corner that the only way they can conduct a prosecution is for them to violate Rule 3.3 continuously.

In his defense, Mr. Echols would have the conversation with McDonald played in its entirety, and it would be clear to jurors that Mr. Echols made no threats against McDonald. This would leave prosecutors with one of three options.

The first would be to hope that the judge (especially if House presides) would keep the taped conversations out of evidence altogether. After all, that is what they did in the Tonya Craft trial, and House was all-too-happy to oblige the guys running the show. Now, LMJC judges are capable of just about anything, so while everyone knows that the conversations exist, a judge might just decide to pretend they don't, although I cannot imagine a legal precedent that would fit.

If prosecutors were successful there, they would be doing so only at violating Rule 3.3, as they would knowingly be pushing untrue testimony, and one can bet that some of us will be quite happy to notify the Georgia State Bar of the circumstances. Furthermore, that would be tantamount to suborning perjury in order to pursue a false case against an African-American, which no doubt would interest certain people in the U.S. Department of Justice and maybe the national media. (This time, there would be no little children making accusations, just prosecutors making bald-faced lies, and this time the people giving untrue assertions would not be seen as "sympathetic" to the press.)

Thus, if they could keep out the recordings, then McDonald could claim again on the stand that he had not spoken with Mr. Echols. Of course, if that were to happen, then the prosecutors just might be hard-pressed to claim why they were telling McDonald to lie when by the time the trial began, media people likely would have the recordings, and would be inclined to make the contents available to the public. With prosecutors openly suborning perjury to bring charges against an African-American, they would be receiving a lot of attention that would be less-than-pleasant.

My sense is that Mr. Echols will be permitted to enter the recordings into evidence, so now prosecutors would have another problem. During the Tonya Craft trial, McDonald testified that he had not spoken to Mr. Echols. In the trial of Mr. Echols, however, McDonald would then have to testify that he had spoken to the investigator, which would be an admission that he lied on the stand the first time.

What to do? Perhaps the prosecutors could get the original testimony kept out of the evidence file, pretending that McDonald never appeared on the witness stand against Tonya Craft. However, if the judge were to grant prosecutors such a request, the media would have access to the video recording of that testimony, and once again people around the country would see a judge and prosecutors teaming up to bring false evidence in order to try to convict an African-American, not a good scene.

Thus, the last option would be for prosecutors to get McDonald to claim that, yes, he had spoken to Mr. Echols and, yes, he had not been candid about the conversation during his original testimony. Most likely he would say that he lied on his own, without any help from prosecutors, and that it was just an error in judgment.

However, then prosecutors would have him add that Mr. Echols threatened him during an unrecorded conversation. Even though Mr. Echols is very, very cautious in his work and even though the man records everything and takes meticulous notes, nonetheless the prosecution would want jurors to believe that in a moment of arrogant carelessness, he made threats to McDonald, McDonald's wife, and his daughter.

The real question, then, is whether or not prosecutors could convince McDonald to lie twice. If they were to do that, then I believe they also would be violating Rule 3.4, entitled "Fairness to Opposing Party and Counsel." This rule states:

A lawyer shall not:

(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) (1) falsify evidence;

(2) counsel or assist a witness to testify falsely;

The maximum penalty for a violation of this Rule is disbarment.

What am I saying? I am saying that if Buzz Franklin's office continues to push this case against Mr. Echols, they can expect some of us to bring charges to the Georgia State Bar that prosecutors are violating Rules 3.3 and 3.4, and we will be able to bring the documented evidence with us.

In some ways, the Eric Echols case is much more dangerous to Franklin and his minions than was the case against Tonya Craft, and I believe that Arnt and Gregor should be disbarred over their conduct in that one. However, with Mr. Echols being African-American and being tried in what essentially is an all-white Georgia county, the prosecution will face scrutiny that will make what they faced during the Craft trial seem to have been a picnic. That is not a threat on my part; I am just stating the facts as I see them.

Note that I have not dealt with the "Mommie, Dearest" incident with Sandra Lamb physically attacking Mr. Echols and calling him a "black bastard," with the whole sorry thing recorded on camera. The failure of LMJC prosecutors to deal with this lawbreaking provides one more reason why someone in authority needs to investigate Buzz Franklin, Chris Arnt, Len Gregor, and the rest of the prosecutors in that office.